RULES AND REGULATIONS

OUR BOARD OF DIRECTORS RECENTLY IMPOSED A FINE AGAINST A HOMEOWNER FOR PARKING HIS VEHICLE ON THE STREET, WHICH IS A VIOLATION OF THE CC&Rs. CAN THIS FINE BE IMPOSED WITHOUT A VIOLATION HEARING?

You cannot impose a fine without providing a proper notice and an opportunity to be heard, but you may be able to tow an improperly parked vehicle located on the common area streets and/or parking lots (provided the proper signs are posted at the access points in and to the subdivision consistent with the Vehicle Code). Specifically, subsection (h) of Civil Code §1363 requires community associations to notify an owner when the board of directors plans to meet to consider or impose disciplinary action upon the owner based on the owner's alleged violation of the association's governing documents. The notification must be given by either personal delivery or first class mail at least ten days prior to the meeting (hereinafter "Ten Day Meeting Notice") and the notification must contain, at a minimum, the date, time and place of the meeting, the nature of the alleged violation, and a statement that the owner has a right to attend and address the board at the meeting. If the board of directors imposes discipline on the owner, the board shall provide notification of the disciplinary action by either personal delivery or first class mail to the owner within fifteen days following the action (hereinafter "Fifteen Day Ruling Notice"). The association's disciplinary action is not valid unless the board fulfills the Ten Day Meeting Notice and the Fifteen Day Ruling Notice requirements.

There is some ambiguity as to what constitutes disciplinary action. It is debatable whether certain actions, such as towing of vehicles which violate association use restrictions on private streets and/or parking areas, are considered disciplinary action and would require the Ten Day Meeting Notice or the Fifteen Day Ruling Notice prior to instituting action. Associations, by and through their boards of directors, may wish to clarify in their enforcement procedures and rules / regulations the definitions of disciplinary action (which could be defined to mean an action taken against an owner resulting in a monetary fine / sanction and/or suspension of common area or other use privileges) and enforcement of the governing documents (which could be defined to mean a parking violation resulting in towing and other self-help remedies which would not result in a monetary fine / sanction being imposed against the owner).

For example, towing of vehicles which have been parked on common area private streets in violation of an association's governing documents could be defined as an enforcement action, as opposed to the levying of monetary fines and/or suspension of common area privileges and other related action. In such an event (if there is a clear delineation between disciplinary action and enforcement action), the association should have the ability to tow a vehicle parked in violation of its governing documents without providing a hearing and with minimal, if any, notice.

CAN ASSOCIATIONS PRECLUDE PETS FROM THEIR SUBDIVISIONS?

It depends, but probably not. Civil Code §1360.05 ("Pet Statute"), which became operative on January 1, 2001, states that "no governing documents shall prohibit the owner of a separate interest within a common interest development from keeping at least one pet within the common interest development, subject to reasonable rules and regulations of the association."

It is important to note that the Pet Statute:

• Also applies to any governing documents which are amended or otherwise modified after January 1, 2001, not just to governing documents which become operative on or after January 1, 2001. Thus, liberal interpretation requires that the Pet Statute be applied to any governing document which is modified in any way for any reason after the first of January 2001. For example, if an association has a total prohibition against pets, but was amending the CC&Rs to delete references to the Developer, the pet prohibition in the CC&Rs would no longer be enforceable and would be subject to the Pet Statute's mandated one-pet rule. Accordingly, an association with a total pet prohibition within its CC&Rs will no longer be able to amend its CC&Rs for any reason without concurrently losing its right to enforce its pet restriction.
• Defines the word "pet" as a domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed between the association and the homeowner. There is no mandated one-pet rule which includes an exotic (but possibly domesticated) animal. The Pet Statute also has no impact on an owner's right to keep other pets (such as guide / signal / other service dogs), based upon other laws.
• Calls into question whether the mandated one-pet rule affords protection only to owners or would it also apply to tenants. Although Civil Code §1360.5(b) refers only to owners, we interpret this to mean that an owner could certainly assign his/her right to maintain at least one pet within the common interest development to his/her tenant and, thus, the Pet Statute applies to all occupants.
• Codifies the basic concept of allowing any existing use which would be impacted by a new rule / restriction (i.e., "grandfathering"). Under §1360.5(d), a rule or regulation can be implemented which restricts the number of pets an owner may keep (other than the allowed one pet under §1360.5(b)), provided that the rule or regulation does not prohibit the owner from continuing to keep any pet that he/she has in his/her residence if the pet otherwise conforms with the previous pet rules/regulations.
• Does not limit an association from amending CC&Rs or rules and regulations related to leash laws, dog/cat potty habits, or noise/barking concerns and leaves intact the association's ability to regulate and enforce such use where appropriate.

Since Civil Code §1360.05 took effect, we have found several associations that permit pets within their subdivisions despite a provision precluding pets within their governing documents. In this situation, we recommend that the governing document be amended to permit at least one pet, so that the association cannot be accused of arbitrary enforcement. Further, governing documents should be amended to state a specific number of allowed pets, so that the regulation can be enforced equitably. For example, it would make sense to limit the number of pets to one or two in a condominium subdivision due to the density and closeness of the units; however, a higher number of pets may be more reasonable in a planned development where there are backyards and more room for the pets.

CAN AN ASSOCIATION REGULATE SKATEBOARDING AND OTHER HAZARDOUS ACTIVITIES ON THE COMMON AREA?

Skateboarding and other similar recreational activities (such as roller blading, roller skating, scootering, and go-pedding) are increasing in popularity. These activities are popular with minors and young adults. However, associations should know how they can best limit liability arising out of any injuries sustained by people engaging in skateboarding and other similar recreational activities on the common area.

The governing documents clearly vest a board of directors with the authority to regulate the use of the common area streets and recreational areas and may either condition or strictly prohibit skateboarding and other similar recreational activities. Even though an individual owner has an easement of ingress, egress, and enjoyment in and to the common area, that right is subject to the board of director's power to adopt and publish rules and regulations governing the use of the common area and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof.

These standard provisions found in most governing documents give the board the power to issue rules which could prohibit or limit skateboarding, roller blading and other similar activities in the common areas, including the streets. However, whether the board should go so far as to prohibit skateboarding and other activities on the driveways and areas on individual lots is another question. The board is not subject to "premises liability" arising out of injuries sustained by individuals on areas not owned and/or maintained by the board. If someone is injured in their own driveway while kick flipping a skateboard, the association runs very little exposure to a personal injury claim (although it is conceivable that anyone with a filing fee can sue the association for any reason). It is our opinion that if an association wishes to limit skateboarding, roller blading, and similar activities, it should only preclude such activities within the common areas and other areas which the association has an obligation to maintain.

If the association strictly prohibits skateboarding and other similar activities on the common areas, it will minimize its liability in the event someone violates the rule, skateboards on the private streets, and suffers injury. The association will have a strong argument in defense of any claim of premises liability for any injuries on the common areas arising out of these activities if it strictly prohibits the activities. In that event, the complaining party will have been injured as a result of engaging in a strictly prohibited activity and it would be more difficult for that individual to recover from the association. (If the association is aware of a dangerous condition on the street and does nothing to correct the dangerous condition, the association could be liable no matter what activity occurs on their streets even if such activity is prohibited).

Of course, strictly prohibiting skateboarding, roller blading, roller skating, and other activities will probably be met with substantial opposition from some of the members of the association, particularly those households with children. If the association wishes to minimize its risk of exposure while still allowing these ever popular activities, another option for the association is to strictly prohibit the activity unless the person engaging in the risky activity (or the parent/guardian of a minor) signs a release and waiver form. If you elect to use the waiver and release form, we recommend that you post very visible signs on every street and at the entrance to the project the following information:

SKATEBOARDING, ROLLER BLADING, ROLLER SKATING, AND USING SCOOTERS AND/OR GO-PEDS ARE ALL HAZARDOUS RECREATIONAL ACTIVITIES. THEY INVOLVE NUMEROUS RISKS OF INJURY, INCLUDING FALLS, LOSS OF CONTROL, COLLISIONS WITH OTHER PEOPLE AND THINGS, AND DEATH. THESE ACTIVITIES ARE STRICTLY PROHIBITED IN ABC ASSOCIATION WITHOUT A PERMIT WHICH IS AVAILABLE THROUGH MANAGEMENT AT [phone number] IN EXCHANGE FOR A WAIVER AND RELEASE.

If a person engages in the activity without having signed a waiver and release and is injured while engaging in an otherwise prohibited activity, he/she will have difficulty establishing liability on the part of the association. If the person actually signs the waiver and release, it will be dispositive of a claim for negligence or damages unless the party asserting a claim against the association is somehow successful in invalidating the release and/or successfully argues that the injuries were not within the scope of the release.

In either event, whether the association strictly prohibits these recreational activities or decides to "permit" the activity through the use of a waiver and release form, the association must amend its rules and regulations to reflect the "hazardous activities" rule in addition to putting signs up throughout the project.

Lastly, we wish to caution the board with respect to its general obligation to maintain the common areas. Notwithstanding the skateboarding activities and any release obtained in connection therewith, the board must still maintain the common areas in a safe manner to the standards more particularly set forth in the governing documents. If it does this, and an injury nonetheless happens as a result of a "regulated activity," then the release should minimize the association's liability.

DOES A BOARD OF DIRECTORS HAVE THE AUTHORITY TO REGULATE THE HEATING OF ITS POOLS AND SPAS WITHOUT MEMBERSHIP CONSENT?

Under an association's governing documents, the board has the obligation and authority to conduct, manage and control the affairs and business of the association. The governing documents further charge the board of directors with the maintenance, supervision and repair of all common areas and community facilities thereon, which would include the pools and spas.

Most governing documents state that the board has the authority to take such action, whether or not expressly specified, as is reasonably necessary to perform the association's obligations. We believe this authority includes the ability to regulate and manage the common area as the board deems appropriate.

Although the board has the duty to maintain the community facilities, such duty does not obviate the board's authority to interpret what the maintenance of those items should be. Additionally, we interpret this "duty to maintain" to mean "keeping in good repair and working order." Maintaining a swimming pool or spa does not include heating them throughout the winter. Furthermore, so long as the homeowners are not unreasonably denied the use of the recreational facilities, we believe the board of directors has the authority to act as it deems prudent and advisable.

During the energy crisis, many associations made the decision to turn off the heat to several of their pools and spas. The board has a fiduciary obligation to properly manage the association finances, which could include attempts to regulate utility costs so that regular assessments don't have to be increased or special assessments imposed. With the state's recent energy crisis and increase in energy costs, many associations have taken the same measures (without membership approval) to turn off the heat to several of their pools and spas in order to cut down on utility costs.

We wish to add, however, that some homeowners may be more upset with the location of the pools and spas which have been targeted for regulation, rather than the board exercising its authority to do so. If this is the case, the board may want to consider rotating the pools and spas on a seasonal basis each year so that each pool/spa at some time will be heated. (Note, however, that rotating on a shorter period of time, such as monthly, may defeat the intended purpose of saving energy).

As a conciliatory measure, an association may also want to consider sending out an advisory ballot to gauge the desire of the membership to pay for the increase in the cost to heat all the pools and spas in the subdivision or whether they wish to advise the board to be more fiscally conservative and try to keep assessment increases to a minimum by only heating a few of the pools and spas on a rotational basis.

ILLEGALLY PARKED VEHICLES ARE A PROBLEM IN OUR SUBDIVISION. CAN THE ASSOCIATION HAVE THESE VEHICLES TOWED?

Although every association is unique and therefore requires a review of its governing documents for additional restrictions on the association's ability to tow vehicles, we believe that California law provides sufficient guidelines for any association to create a procedure to address the towing of vehicles in their respective subdivisions.

Under Vehicle Code § 22658.2, associations may have improperly parked vehicles removed and towed from the association's common area streets, and parking areas if they meet specified requirements. To be able to tow vehicles, an association must meet the three sets of requirements of Vehicle Code § 22658.2(a), which are further discussed below.

Signs at Each Entrance

Most associations' governing documents contain parking restrictions and provisions regarding the association's authority to tow an illegally parked vehicle from the association's common area parking lots and/or private streets. However, many associations would be unable to act on this authority because they do not comply with California Vehicle Code § 22658.2, which requires that a sign, not less than 17 x 22 inches in size with lettering not less than one inch in height appear at each entrance to the subdivision and contain the following language:

• A statement that public parking is prohibited and that all vehicles not authorized to park within the subdivision will be removed at the owner's expense;
• The telephone number of the local law enforcement agency.

Therefore, if the association does not have these signs posted, it should immediately install them at each entrance to the subdivision to comply with this provision.

Notice Prior to Towing of Vehicle

California Vehicle Code § 22658.2 permits associations to remove and tow improperly parked vehicles to the nearest public garage. Vehicle Code § 22658.2, as well as §§(f) through (k) of § 22658, do not specify any notice to the violating vehicle owner prior to towing. However, it is recommended that the association place a written notice on any violating vehicle enumerating that the vehicle will be towed to a public garage unless the vehicle is moved within the time frame contained in your governing documents. If your governing documents do not contain a notice requirement, then we believe a twenty-four (24) hour notice would be sufficient and reasonable. Additionally, although not required, it is suggested that if the telephone number of the vehicle owner is known, then the association should attempt, at least once, to communicate with the owner before removal. Conversely, if the association does not know to whom the vehicle belongs, you may wish to contact your local law enforcement agency and request information on the registered owner of the vehicle so that you may provide him/her with notice.

(Please note that pursuant to Vehicle Code §22658.2(b), an Association may tow a vehicle without notice if the vehicle is parked in a marked fire lane, within 15 feet of a fire hydrant, in a handicapped parking of otherwise obstructs the ingress or egress of an owner or of the subdivision.)

Requirements of Notice to Vehicle's Owner and Local Law Enforcement After the Violating Vehicle Has Been Removed.

Vehicle Code § 22568.2 also requires notice to the vehicle owner after the vehicle has been removed from the subdivision. More particularly, if the identity of the vehicle owner is known or readily ascertainable, the association must notify the owner of the removal by first-class mail.

If the association cannot ascertain the name of the owner and the vehicle is not returned to the owner within a period of one hundred twenty (120) hours, then pursuant to Vehicle Code § 22853, the association shall immediately send a written report of the removal by mail to the Department of Justice in Sacramento, and shall file a copy of the notice with the proprietor of the public garage where the vehicle was stored. The report shall be made on a form furnished by the Department of Justice and shall include a complete description of the vehicle, the date, time and place from which the vehicle was removed, the amount of mileage on the vehicle at the time of removal, the grounds for removal, and the name of the garage or place where the vehicle was stored.

In addition to the notice requirement to the owner of the vehicle, the association must also give notice to the local law enforcement agency immediately after the vehicle has been removed. The notice shall include, again, a complete description of the vehicle, the license plate number, the date, time and place where the vehicle was removed and the name of the garage or place where the vehicle was stored.

No Liability for Towing

Vehicle Code § 22568.2(c) provides in pertinent part:

The association shall not be liable for any damages incurred by the vehicle owner because of the removal of a vehicle in compliance with this section or for any damage to the vehicle caused by the removal. However, the owner of a vehicle removed pursuant to this section may recover for any damage to the vehicle which results from any intentional or negligent act of the association or any person causing the removal of, or removing, the vehicle.

As such, the association would not be held liable for any damage to the vehicle caused by the towing company or any storage thereafter. However, the association could be held liable for any damage to the vehicle which resulted from the association's negligent act (for example, if the association towed the vehicle itself or failed to comply with the Vehicle Code).

CAN AN ASSOCIATION PRECLUDE A FAMILY DAY CARE HOME WITHIN THE SUBDIVISION UNDER THE DEFINITION OF RESIDENTIAL USE AND USE RESTRICTIONS? NO. Under California law, day care facilities are considered a residential and single family use. Associations may not prohibit the operation of a day care center based on a restriction contained within its governing documents, so long as the day care facility operates in compliance with the requirements under Health and Safety Code § 1597.40, et seq.

In 1997, Health and Safety Code provisions related to day care were amended in order to respond to the severe shortage of child care for school age children going home to an empty, unsupervised setting after school by increasing the number of children authorized to be cared for in each classification of "small" and "large" family day care homes. Additional amendments changed the definition of a family day care home and expanded certain responsibilities of day care facility licensees.

Family day care homes are considered an "accessory use of residential zones and occupied properties" and do not change the nature of the residential uses, since they draw clients and vehicles for a limited period of the day and do not require a large number of employees or equipment. A small family day care home may provide care for up to eight children without an additional adult, if: (a) at least two of the children are at least six years of age; (b) no more than two infants are cared for during any time when more than six children are cared for; (c) the licensee notifies each parent that two additional school age children are being cared for and there may be up to seven or eight children in the home at any one time; and (d) the licensee obtains written consent of the property owner when the home is operated on property that is leased or rented.

A large family day care may provide care for up to and including fourteen children if: (a) at least two of the children are at least six years of age; (b) no more than three infants are cared for during any time when more than twelve children are cared for; (c) the licensee notifies each parent that two additional school age children are being cared for and there may be up to thirteen or fourteen children in the home at any one time; and (d) the licensee obtains written consent of the property owner when the home is operated on property that is leased or rented.

The above statutory references point out that in California the establishment of a family day care facility for children is considered to be a residential use of a single family residence. Federal law further provides that any attempt to prohibit such use, including prohibitions by a community residence association pursuant to its CC&Rs, would be considered discrimination under the Fair Housing Act.

The Fair Housing Act prohibits discrimination on the basis of "familial status," among other things. Therefore, although most CC&Rs clearly indicate that the intended use and purpose of the dwellings is for residential purposes only, it is our opinion that such a restriction will not successfully exclude from the meaning of residential use the establishment of day care facilities for children.

Thus, if the use of the home is for a day care facility which provides nonmedical residential care services for children and which complies with all legal requirements, there is nothing an association can do to limit or prohibit such use. However, associations may wish to consider adopting rules related to the operation of a day care center, including the following:

• If use of the day care facility includes any portion of the association's common area, require that the day care facility maintain adequate liability insurance, naming the association as an additional insured and holding the association harmless for any liability arising out of the existence and operation of the day care facility (see Health and Safety Code § 1597.531);
• Require that the day care facility abide by the association's rules and regulations and comply with all laws regulating the operation of a day care center.

CAN AN ASSOCIATION HAVE A TOTAL PROHIBITION AGAINST SOLAR ENERGY SYSTEMS?

NO. Relevant statutes related to solar panel installations may be found in California Civil Code §§ 714 and 714.1. § 714 makes void and unenforceable any restriction within a common interest development which effectively prohibits or restricts the installation or use of solar energy systems. However, §§ 714 and 714.1 still allow associations to impose restrictions that are reasonable and specifically state:

§ 714. Solar Energy Systems; Installation or Use; Invalidity and Unenforceability of Instruments Affecting Real Property

(a) Any covenant, restriction, or condition ... that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.

(b) This section shall not apply to provisions which impose reasonable restrictions on solar energy systems. ... Accordingly, reasonable restrictions on a solar energy system are those restrictions that do not significantly increase the cost of the system or significantly decrease its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits ...

(d) For the purposes of this section: (1) "Significantly" means an amount exceeding 20 percent of the cost of the system or decreasing the efficiency of the solar energy system by an amount exceeding 20 percent, as originally specified and proposed. ...

(e) Whenever approval is required for the installation or use of a solar energy system, the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property, and shall not be willfully avoided or delayed. ...

§ 714.1. Solar Energy Systems; Common Interest Developments

Notwithstanding Section 714, any association, as defined in Section 1351, may impose reasonable provisions which: ...

(b) Require the owner of a separate interest, as defined in Section 1351, to obtain the approval of the association for the installation of a solar energy system in a separate interest owned by another.

(c) Provide for the maintenance, repair, or replacement of roofs or other building components.

(d) Require installers of solar energy systems to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system.

Thus, pursuant to the foregoing, any covenant, condition or restriction that effectively prohibits or significantly restricts the installation or use of solar energy systems is void and unenforceable. The statute defines "significant" as any restriction that increases the cost of the system by 20% or decreases the efficiency of the system by 20%. However, an association may impose reasonable provisions which: (1) require approval for installation; (2) provide for maintenance, repair or replacement of roofs or building components; and (3) require installers (i.e., owners) of the solar systems to indemnify the association for loss or damage caused by installation, maintenance, or use of the system.

Our office has contacted various solar heating systems dealers and was advised as follows:

• Solar panels can be installed on the roof or on the ground. Two distributors we contacted stated that panels may be installed on the ground in the back or side yards, instead of the roof. Apparently, a ground installation is just as effective as a roof installation, as long as the panels are exposed to sunlight.
• The panels and glass coverings are generally held by aluminum frames which may be painted any color without jeopardizing the efficiency of the heating system. The plumbing and tubes going to and from the panels may also be painted any color to blend in with roof and exterior walls of the structure.
• One solar vendor distributes terra cotta roof tone panels and claims that they are just as effective as the black panels. However, other distributors discount the effectiveness of terra cotta tone roof panels, because supposedly only the black panels operate efficiently and the terra cotta roof panels need three times more area space in order to produce the same level of heat as the black panels.

Based upon Civil Code §§ 714 and 714.1, the association can require the following for all solar panels:

• Architectural Committee approval for installation of any solar panels, wherever located.
• Consideration that the solar panels be placed on the ground or in an area which minimizes the visual impact on the aesthetics within the community (such as in the rear or side yards). In this situation, the association will be faced with a contention from the owner that placing solar panels on the ground will significantly increase the cost of installation and/or significantly decrease efficiency. As such, if the association requires the solar panels be installed at a location other than where the owner desires, the association may need to retain an expert to defend its position.
• That the solar panels match the color of the roof system. Again, the association may face contentions by the owner that this would significantly increase the cost of installation or decrease efficiency. Nevertheless, the metal frames and plumbing of the panels may be required to be painted a neutral color or color which blends with the surrounding area.
• For requests for installation of solar systems on association common area, the association can require:
• That the applicant provide for the maintenance, repair, or replacement of roofs or the building components upon which the solar system is located and require inspections by the association's roofing contractor/consultant before final approval is given.
• That the installers of solar energy systems and/or the applicant indemnify the association for loss or damage caused by installation, maintenance, or operation of the system.

CAN AN ASSOCIATION REGULATE REALTY SIGNS?

IT DEPENDS. Associations are limited in their ability to regulate sale or lease signs by California Civil Code §§  712 and 713, which provide:

§ 712. Real Estate Sales; Prohibition of Signs Void; Permissible Displays

(a) Every provision contained in or otherwise affecting a grant of a fee interest in ... real property ... which purports to prohibit or restrict the right of the property owner or his or her agent to display or have displayed on the real property, or on real property owner by others with their consent, or both, signs which are reasonably located, in plain view of the public, are of reasonable dimensions and design, and do not adversely affect public safety, including traffic safety, and which advertise the property for sales, lease, or advertise directions to the property, by the property owner or his or her agent is void and unreasonable restraint upon the property of the alienation...

(c) A sign which conforms to the ordinance adopted in conformity with Section 713 shall be deemed to be of reasonable dimension and design pursuant to this section.

Section 713 of the Civil Code regulates the display of realty signs, and states in pertinent part:

§ 713. Display of Signs.

(a) Notwithstanding any provision of any ordinance, an owner of real property or his or her agent may display or have displayed on the owner's real property, and on real property owned by others with their consent, signs which are reasonably located, in plain view of the public, are of reasonable dimensions and design, and do not adversely affect public safety, including traffic safety, as determined by the city, county or city and county, advertising the following:

(1) That the property is for sale, lease or exchange by the owner or his or her agent.
(2) Directions to the property.
(3) The owner's or agent's name.
(4) The owner's or agent's address and telephone number.

(b) Nothing in this section limits any authority which a person or local governmental may have to limit or regulate the display or placement of a sign on a private or public right-of-way.

It is important to note that the foregoing Civil Code sections relate to the regulation of "For Sale" or "For Lease" signs on an owner's property. In most condominium subdivisions, each owner owns the air space within his/her individual unit, but all other areas are generally designated as common area. Thus, by placing a "For Sale" or "For Lease" sign on the garage of an owner's condominium unit, the owner or his/her agent is actually placing the sign on association common area. In this situation, the association can regulate the signs in any manner it wishes. However, if the owner wishes to display a sign in his/her window, then the owner could assert his/her rights under Civil Code §§ 712 and 713. California Civil Code § 712 precludes enforcement of any use restriction within the CC&Rs which prohibits or restricts the display of a "For Sale" or "For Lease" sign, so long as the signs are of "reasonable dimensions and design and do not adversely affect public safety..." Further, Civil Code § 712(c) indicates that a sign which conforms to the local ordinance, adopted in accordance with § 713 (cited above) shall be deemed to be of reasonable dimensions and design.

In summary, an association can regulate "For Sale" or "For Lease" signs which are placed within common area locations, including areas which are part of the residential unit if the subdivision is a statutory condominium, as well as any recreational areas and green belt landscaping areas.

Additionally, Civil Code §§ 712 and 713 only regulate the placement of one sign on the owner's property. Therefore, a separate "open house" sign could be precluded by the association.

As a compromise, many associations in coordination with real estate agents approve a standardized sign in a specific color, size, and placement on the residence. We recommend that associations work with their realtors to facilitate such a standardized sign. Condominium subdivisions have a substantial advantage in such negotiations with realtors, since most areas on the exterior of the unit is considered common area, and the association is not limited by Civil Code §§ 712 and 713.

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