Short answer: no. If you are opening a residential care facility for six or fewer elderly residents in California, a homeowners association cannot use its CC&Rs to stop you. The law is clear, it is old, and there is a published Court of Appeal decision behind it.
Start with the statute
Health and Safety Code section 1569.87 says that for purposes of any contract, deed, or covenant for the transfer of real property executed on or after January 1, 1979, a residential facility for the elderly serving six or fewer persons shall be considered a residential use of property and a use of property by a single family, notwithstanding any disclaimers to the contrary.
Read that closing phrase again. The Legislature knew some covenants would be drafted specifically to keep facilities like yours out, and it said in advance that those disclaimers do not control. Section 1569.85 supports the same conclusion from the zoning side, treating a six bed facility as a residential use and its residents and operators as a family.
What about covenants older than 1979?
This is where people get stuck, and it is where the case law does the work. Section 1569.87 by its own terms applies to documents executed on or after January 1, 1979. A great many California CC&Rs are older than that.
In Broadmoor San Clemente Homeowners Association v. Nelson (1994) 25 Cal.App.4th 1, the Fourth District Court of Appeal, Division Three, addressed exactly that gap. The association sued to stop the Nelsons from operating a six bed facility for non-ambulatory elderly residents. The Broadmoor CC&Rs dated from 1974, so section 1569.87 did not cover them.
The court held the covenant unenforceable anyway. Government Code section 12955.6 provides that any state law purporting to require or permit an action that would be an unlawful practice under California’s fair housing law is invalid to that extent. The 1993 amendments to Government Code section 12955 made discrimination through private land use practices unlawful and said outright that discrimination includes restrictive covenants. So section 1569.87’s implicit permission for pre-1979 covenants to bar these facilities was itself invalid. The trial court was reversed and judgment was ordered for the Nelsons.
The disability angle, and why it is broader than one association
The reasoning is worth understanding. Residential care facilities for the elderly house people who need care and supervision, which makes them housing for people with disabilities. Government Code section 12955 makes it unlawful to discriminate through public or private land use practices, decisions, and authorizations because of disability, and states that discrimination includes restrictive covenants, zoning laws, and denials of use permits. Government Code section 12955.3 defines disability to include any physical or mental disability as defined in section 12926.
The Broadmoor court also discussed the federal Fair Housing Act as amended in 1988, and cited Marbrunak, Inc. v. City of Stow, Ohio (6th Cir. 1992) 974 F.2d 43, along with the House Judiciary Committee’s statement that the act was intended to prohibit restrictive covenants that exclude congregate living arrangements for people with disabilities. The holding itself rests on the California statutes, but the federal law is the current running underneath them.
Where that leaves you
If your CC&Rs were executed on or after January 1, 1979, section 1569.87 answers the question by itself. If they are older, Broadmoor is a published, citable decision that is still good law, and it answers the question for you. Either way, a board that tells you the covenants prohibit a care home is wrong.
This is general information about California law, not legal advice for your situation. If a board is actively threatening enforcement, talk to a lawyer.
You do not have to handle the process alone. NCPI has been guiding California operators through exactly these situations, and our family has been doing this work for 30 years. We prepare the complete facility application and mail it to you to sign and submit, for $1,199.99, or $999.99 for returning students. Reach us at contact@ncpicare.com or 619-322-9578.
