By Kay Wilson-Bolton
October 14, 2007
Recent local news revealed the controversy in neighborhoods for homeowners who want to use their as a day care center, half-way house or home for troubled youth.
REALTORS® and sellers grapple with disclosure questions and this particular disclosure is whether the law requires disclosure of a residential care facility in the neighborhood such as a group home for the elderly, a home for trouble youth or the infirm.
The California Attorney General has issued opinions on the specific questions of whether a domestic violence shelter or a licensed residential care facility serving six or fewer persons constitutes a nuisance and whether its’ existence in the neighborhood requires disclosure to a prospective buyer.
Although a California Attorney General opinion is not deemed a legal precedent and need not be followed by a California court– as an appellate court decision would–it does have persuasive value. This legal memorandum focuses primarily on these California Attorney General Opinions.
A domestic violence shelter does not constitute a nuisance and its’ existence need not be disclosed by the seller of residential property for the following reasons:
- The mere existence of such a shelter does not fall within the definition of a nuisance stated in California Civil Code Section 3479;
- Such a shelter is maintained under the express authority of a statute as reflected in California Civil Code Section 3482; and
- The California residential property disclosure statute–California Civil Code §§ 1102.6 et seq.–must be construed in a manner consistent with the strong policy of the state in favor of operating domestic violence shelters throughout the state.
At this time, a seller is not required to disclose the location of a licensed care facility serving six or fewer people to prospective buyers of residential property. In response to a direct inquiry, however, such disclosure is permitted as long as it is stated factually and not used to aid discrimination against or segregation of the licensed care facility within the community
The following is a non-exhaustive list of facilities the legislature wishes to protect from discrimination and to foster their development by not requiring disclosure of their existence in the neighborhood:
Community care facilities for mentally ill or developmentally and physically disabled children and adults; community care facilities for wards of juvenile courts; residential care facilities for the elderly; California adult day care centers; and local rape victim counseling centers
Determining the “six or fewer,” number does not include family or staff persons. The law protects only those facilities for six or fewer persons from additional local government regulation and taxation.
The disclosure requirements are broad in that the disclosure form states issues that may concern buyers may not concern the sellers; and, conversely, issues that may concern sellers may not affect buyers.
On the other hand, regardless of the number of residents in a facility, both federal and state law still prohibits discrimination on the basis of an individual’s “handicap.” And, undoubtedly, the disclosure of the existence of a Community Care Facility serving more than six persons in the neighborhood may very well chill sales of homes in the same neighborhood.
The safest course of action for a licensee under these circumstances is to provide the factual disclosure of the existence of the facility, without making any statements which could be perceived as intending to foster discrimination against the licensed residential care facility.
The California Department of Social Services regulates and licenses residential care facilities. Information is available at http://www.dss.cahwnet.gov/cdssweb/Residentia_180.htm. Information on the licensing of these facilities is also available at http://ccld.ca.gov/.
Kay Wilson-Bolton is the owner of CENTURY 21 Buena Vista and CENTURY 21 Ability. She brings a regional perspective to local issues. She can be reached at 805.340.5025. Her web address is www.readysetkay.com