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Court of Appeal, Second District, Division 2, California.

John P. O'CONNOR, Denise R. O'Connor and Gavin John O'Connor, a minor, by John P. O'Connor, his Guardian ad Litem, Plaintiffs and Appellants, v. VILLAGE GREEN OWNERS ASSOCIATION, Defendant and Respondent.

VILLAGE GREEN OWNERS ASSOCIATION, an unincorporated association, Plaintiff and Respondent, v. John P. O'CONNOR, Denise R. O'Connor, and Gavin John O'Connor, Defendants and Appellants.

Civ. 61853, Civ. 63079.

Decided: September 22, 1981

Jean E. Kidwell and Frank S. Pestana, Los Angeles, for appellants. Boren, Elperin, Howard & Sloan, a Professional Corp., William Elperin, Steven J. Revitz, Los Angeles, for respondents. Ira Reiner, City Atty., Thomas C. Bonaventura, Senior Asst. City Atty., Colin Chiu, Asst. City Atty., for amicus curiae City of Los Angeles.

In this consolidated appeal we are presented with the question of whether a provision in the covenants, conditions and regulations (CC & Rs) of a condominium project which limits residency to persons over the age of 18 years is valid and enforceable.

The appeals which have been consolidated arise out of two separate actions for declaratory and injunctive relief between the same parties filed in the Superior Court for Los Angeles County.



In this action, the first to be filed, John P. O'Connor, his wife, Denise, and their minor son, Gavin, owners of a unit in Village Green, a condominium development in the City of Los Angeles, sought to have the above mentioned regulation declared invalid and to enjoin its enforcement. The trial court sustained, without leave to amend, a demurrer to the first amended complaint and dismissed the action. The O'Connors noticed an appeal.



After the filing of the notice of appeal in the first action, the Village Green Owners Association filed its action seeking to enjoin the O'Connors from residing in the condominium with Gavin. The trial court granted a preliminary injunction but stayed its enforcement for 90 days to allow the O'Connors to find other housing.

The O'Connors noticed an appeal from that order. Since the preliminary injunction was mandatory in effect, requiring the O'Connors to relocate, enforcement was stayed by the appeal.

Initially we will focus our attention on the appeal in case No. 316203, and refer to the O'Connors as the plaintiffs, and the Village Green Owners Association as the Association.


The Association is the governing body of a 600 unit condominium development located in the Baldwin Hills area of Los Angeles. Plaintiffs purchased a unit in the development in February 1975. In so doing, they became members of the Association and agreed to be bound by the covenants, conditions and restrictions (CC & Rs) which had been adopted according to law.

Those CC & Rs provide, inter alia, that occupancy of the premises is limited to persons over 18 years of age. There is no question but that plaintiffs were well aware of the CC & Rs, agreed to them voluntarily and had no reservation as to their validity. In July of 1979, Gavin was born. Shortly thereafter, the Association gave written notice of the violation of the CC & Rs if the child continued to reside on the premises and of the Association's intent to enforce the provisions of the CC & Rs.

According to the complaint, plaintiffs did not intend to violate the CC & Rs but, because of the unavailability of other suitable housing, which they unsuccessfully attempted to obtain, they have decided to remain in the condominium unit. They so advised the Association. When the Association expressed its intent to enforce compliance, they instituted this action.

The complaint, alleges that the Association's restriction against children under 18 violates article I, section 1 of the California Constitution1 and the Fourteenth Amendment to the United States Constitution, the California Civil Rights Act (Civ.Code, s 51, et seq.), the California Fair Housing Law (Health & Saf. Code, s 35700, et seq.) and Los Angeles Municipal Code section 45.52, which prohibits discrimination in rental housing on the basis of age, parenthood, pregnancy or the potential or actual tenancy of a minor child.

The regulation in question is a private contract. Thus constitutional provisions which necessarily deal only with state action are not involved. Of course, in Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161, the United States Supreme Court held that judicial enforcement of private covenants amounted to state action and offended constitutional protections when enforcement of those covenants resulted in constitutionally prohibited racial discrimination. Neither the United States nor California Constitutions specifically prohibit discrimination on the basis of age. Hence, if the regulation is to be declared invalid and unenforceable, we must look elsewhere for a reason.

The California Fair Housing Act relied on by plaintiffs has since been repealed. The subject matter is now covered by Government Code section 12900, et seq. Neither the repealed sections of the California Fair Housing Act nor the pertinent Government Code sections mention discrimination in housing based upon age.

The intent of the Legislature to exclude age as a protected class in housing becomes certain when one examines the difference in treatment for discrimination in employment. Section 12920 of the Government Code includes age in declaring the state's policy against discrimination in employment, yet omits the word age in its declaration of policy against housing discrimination. The statute in pertinent part states:

“(T)he practice of discrimination because of race, color, religion, sex, marital status, national origin, or ancestry in housing accommodations is declared to be against public policy.” (Gov.Code, s 12920; emphasis added.)

The Legislature, obviously aware of age as a possible category for consideration in addressing the problem of discrimination, chose to omit age as a factor in prohibiting housing discrimination. This distinction between housing and employment is repeated throughout the code. Government Code sections 12941 and 12942 likewise provide protection against discrimination in employment on the basis of age. Other relevant sections dealing with discrimination in housing, however, again make no mention of age. Section 12955 defines unlawful discrimination in housing as to “(d)iscriminate against any person because of the race, color, religion, sex, marital status, national origin or ancestry of such person.”

Civil Code section 51, the so-called Unruh Civil Rights Act of California, which prohibits discrimination in business and public accommodations, makes no reference to housing. Further, it does not mention age as one of the factors within its sweep.

While these statutes do demonstrate a strong public policy in California against arbitrary discrimination by private persons in the areas of public accommodations and housing, they are not, by their terms, directly applicable to the circumstances of this case.

The above referenced Los Angeles Municipal Ordinance, as noted, applies only to rental housing in prohibiting discrimination against children and thus is not directly applicable to the facts of this case. Plaintiffs, however, make the claim that since, as a result of that ordinance, they could not be prevented from leasing their condominium to persons with children under 18, it is unreasonable to deny them the right to occupy their own condominium with their own minor child.

The City Attorney for the City of Los Angeles has filed an amicus curiae brief which not only defends the validity of the ordinance but urges its application to condominium developments. The effect of such application would, of course, nullify the effect of all age restrictions in condominium developments in the City of Los Angeles.

Whatever may be the effect of the ordinance on other forms of housing, we are persuaded that it cannot be applied to condominium developments for the reason that state law has preempted the field.

The state's regulation in the field of condominium development and conversion is broad and pervasive. (See Bus. & Prof. Code, s 11,000 et seq.; Gov.Code, s 66410, et seq.) Germane to the issue here is Civil Code section 1355, which specifically provides that lawfully adopted CC & Rs in condominium housing are enforceable as equitable servitudes so long as they are reasonable.

Implicit in the state statutes dealing with discrimination in housing is a determination by the Legislature that (1) discrimination in housing is a matter of statewide concern, and (2) restrictions in housing based on age are reasonable and non-discriminatory. Implicit in the language of Civil Code section 1355 is the legislative intent that in the absence of an express legislative declaration, the question of whether a particular restriction is or is not reasonable is to be determined by the courts and not by the various pronouncements of local governmental entities.

“At all times since adoption of the Constitution in 1879, section 11 of article XI has specified that ‘Any county, city, town, or township may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws.’ In 1896 section 6 article XI was amended to provide a limited amount of autonomy for freeholders' charter cities, and in 1914 sections 6 and 8 of article XI were amended to permit such cities, by appropriate charter amendments, to acquire autonomy with respect to all municipal affairs. A city which adopted such ‘home rule’ amendments thereby gained exemption, with respect to its municipal affairs, from the ‘conflict with general laws' restrictions of section 11 of article XI. P As to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters, if it is the intent and purpose of such general laws to occupy the field to the exclusion of municipal regulation (the preemption doctrine).” (Bishop v. City of San Jose, 1 Cal.3d 56, at pp. 63-64, 81 Cal.Rptr. 465, 460 P.2d 137.)

The state Constitution does not further define “municipal affairs” or matters of “statewide concern.” Hence it has become necessary on a case-by-case basis for the courts to decide into which category a particular subject of regulations falls. (Bishop v. City of San Jose, supra; Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158; Butterworth v. Boyd, 12 Cal.2d 140, 82 P.2d 434.)

It has been widely recognized that the condominium form of housing, which has recently developed into a significant part of our housing pattern, partly because of its economical use of land, presents unique problems and challenges to our traditional concepts of property ownership and use.

Because of the closeness to one's neighbors and the use of common facilities and areas which are factors unique to condominium living, each owner must necessarily surrender a certain amount of freedom of action to the regulatory authority of the other owners as a group. (Laguna Royale Owners Assn. v. Darger, supra ; see generally, Ritchey v. Villa Nueva Condominium Assn. (1978) 81 Cal.App.3d 688, 146 Cal.Rptr. 695; see Riley v. Stoves (1974) 22 Ariz.App. 223, 526 P.2d 747.)

On the other hand persons who purchase condominiums and thus surrender their own freedom of action have the right to rely on the fact that the other owners will be similarly restricted.

“Enforcement (of the CC & Rs) thus fosters condominium development by attracting buyers seeking a stable, planned environment. Enforcement also protects the contractual interests of buyers who purchase their units in reliance on the existence of a restrictive scheme and who may pay a premium to obtain restrictions.” (Condominium Rulemaking, 94 Harv.L.Rev. 647, at 653.)

We can think of no area which is of greater statewide concern than housing and the ability of persons to acquire it in accordance with their needs and desires. Nor can the matter be said to be of local concern because of the economic differences between urban and rural areas. The factors which induce or compel persons to seek housing in urban areas apply with equal force to purchasers of condominiums and persons who seek other forms of housing.

Furthermore, laws dealing with various forms of estates in real property and equitable servitudes are clearly matters for state legislation and not local ordinances.

In regard to the regulation of condominiums and the enforceability of the equitable servitudes upon which condominium purchasers rely, the need for statewide uniformity is manifest. To make enforceability of these equitable servitudes depend upon the vagaries of the individual cities and counties would result in chaos and deal a severe blow to the condominium form of housing.

We thus turn to the basic issue in the case and that is the reasonableness of the restriction which limits occupancy to persons over 18 years of age.

In Ritchey v. Villa Nueva Condominium Assn., supra, the Court of Appeal in the First District specifically upheld a restriction similar to the one here involved. The court there held that the authority of a condominium association reasonably involves the power to impose regulations to prevent activities that might be annoying or disturbing to the entire group of occupants.

Flowers v. John Burnham & Co. (1971) 21 Cal.App.3d 700, 98 Cal.Rptr. 644, cited with approval in Ritchey, found that it was reasonable for an apartment house owner to restrict tenancy to adults, female children and male children under five years of age on the rationale that “ independence, mischievousness, boisterousness and rowdyism of children vary by age and sex.” (Id., at p. 703, 98 Cal.Rptr. 644.)

The noise and laughter of children at play may be music to the ears of their parents and others who are kindly disposed toward children. That noise, laughter and occasional boisterousness, however, can be greatly disturbing to those not so favorably disposed. Those latter individuals have the right, by lawful means, to insulate themselves from such disturbance, especially in the selection of a place to live.

Plaintiffs contend that Gavin, being of such tender years, does not, at this time, have the potential for disturbing the neighbors. Of course that will change with the passage of time. The restriction is of course designed to avoid the difficulty of enforcing the restriction on a case-by-case basis, according to the conduct of the particular children involved.

We conclude that the restriction in question is a reasonable one and is not subject to attack as being either arbitrary, discriminatory or contrary to public policy. It clearly violates no statute and its enforcement does not involve the court, and thereby the state, in any constitutionally prohibited activity.

Plaintiffs' complaint in fact is pregnant with the admission that under ordinary circumstances, the restriction would be reasonable. Certain allegations of the complaint, however, introduce a dimension which was not considered in any of the authorities which have dealt with this problem. That dimension is the current state of the housing and rental market, and plaintiffs' alleged inability to move.

In one respect, plaintiffs' position in this regard is somewhat contradictory. On the one hand, they call our attention to the Los Angeles City Ordinance prohibiting discrimination against children in rental housing and in the same breath contend that such discrimination is widespread. Be that as it may, it is a matter of common knowledge at present that the rental market, whether for adults or children, in this area is “tight” and that purchasing a home is extremely difficult because of the effect of inflation on housing costs and because of high interest rates charged for financing the purchase of a home.

Our duty in interpreting and applying the law as to the validity of the restriction, however, is to endeavor to develop a rule which will have general and lasting application. Thus, our decision cannot turn on the existence of a transitory economic phenomenon which is unrelated to the question of whether the regulation itself is or is not reasonable. Beyond that we observe that plaintiffs' allegations as to their inability to relocate are perfunctory and purely conclusionary. The demurrer was properly sustained and the judgment of dismissal is affirmed.

It follows from our affirmance of the order of dismissal in Case No. 316203, that the order for a preliminary injunction in Case No. 342278 must also be affirmed.


1.  California Constitution, article I, section 1 provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

COMPTON, Associate Justice.

ROTH, P. J., and BEACH, J., concur.