October 7, 2020

Reader Question: Tenants with Criminal Background, and Are Drying Racks OK?

--Kelly G Richardson, Esq

Dear Kelly,

Apparently my HOA made a change in the CC&Rs. The HOA requires that any prospective tenants must be approved by the board, and that no applicant who has a criminal record will be approved. The amendment says nothing about buyers of any of the units. Can they make these demands for just rental units and not units being sold? Wouldn’t criminal records be just as important about a potential buyer?

Thank You, J.S., San Pedro

Dear J.S.:

Leaving aside whether a condominium board can approve prospective tenants, this HOA is taking on potential liability for alleged discrimination. In this instance, if the HOA is banning anyone with a criminal record from renting in the building, the HOA appears to be violating the new Fair Housing Regulations, which took effect at the beginning of 2020.

Regulations Article 24, Section 12265 prohibits owners of housing accommodations from applying blanket bans against anyone with a criminal record. According to the Regulations, HOAs are considered a “housing accommodation” and the board and manager of the HOA are considered the “owner” for purposes of enforcement action.

Owners may use criminal background information, but not in a blanket fashion. Only relevant information may be used. The past criminal history of a prospective tenant must relate to being a bad tenant. For example, someone who previously had a drunk driving felony or securities fraud conviction, would be treated differently than someone who had convictions for violent crimes or arson.

This is a new requirement in California and goes beyond the federal H.U.D. regulations upon which much of the California regulations were based.

Thanks for your question, Kelly

Hi Mr. Richardson,

I enjoy reading your columns every week. I own a second-floor condo in a large complex. My tenant put up a drying rack in the balcony – just a regular drying rack that can be bought from a store. It is visible from outside. The HOA management has sent me a letter that that drying racks are not allowed and a balcony is not a backyard. Is this correct? I know in our condo complex, the balcony is exclusive use common area, so technically I don’t own it, but I thought there were some laws protecting tenants drying clothes.

Thank You, T.P., San Diego

Dear T.P.:

California law protects clotheslines and drying racks under limited circumstances. California Civil Code Section 4753, new in 2017, protects clotheslines and drying racks in “backyards” of HOAs. The term “backyard” is not defined but would appear to refer to enclosed yard exclusive use space (in condominium associations) or the private part of a lot (in planned developments). A resident may not use a balcony, railing, awning or other part of the building as a drying rack or clothesline. The statute also allows HOAs to adopt reasonable rules regarding clotheslines and drying racks. The idea behind the statute appears to be to protect air drying of laundry so long as it is not visible from elsewhere in the complex. Since balconies above the ground can be visible from some distance, this might explain why the balconies are not protected as a suitable place for drying laundry in HOAs.

Best, Kelly

p.s. Read California statutes at www.leginfo.legislature.ca.gov.

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