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Restrictive Covenants

The Fair Employment and Housing Act (FEHA) expressly prohibits the existence of a restrictive covenant that makes housing opportunities unavailable based on race, color, religion, sex, sexual orientation, familial status, marital status, disability, national origin, source of income or ancestry. In conjunction with this prohibition, county recorders, title insurance companies, escrow companies, real estate brokers, real estate agents or associations that provide declarations, governing documents, or deeds to any person are required to place a cover page over the document, or a stamp on the first page of the document, stating that any restrictive covenant contained in the document violates state and federal fair housing laws and is void.

In 2000, the FEHA was amended to establish procedures by which illegal restrictive covenants may be removed. In 2006, the procedures were substantially modified, transferring responsibility for the restrictive covenant program from the Department of Fair Employment and Housing to the local county recorders. Effective January 1, 2006, any person holding an ownership interest of record in a property that he or she believes is the subject of an illegal restrictive covenant may record a document titled Restrictive Covenant Modification with the county recorder in the county in which the subject property is located. The modification document should include a complete copy of the original document containing the unlawfully restrictive language with the unlawfully restrictive language stricken. Following approval by the county counsel, the county recorder will record the modification document (Government Code section 12956.2, subdivisions (a) and (b) ).

For specific information about the restrictive covenant program in your county, please contact your local county recorder.

This procedure does not apply to persons holding an ownership interest in property that is part of a common interest development. Pursuant to Civil Code section 1352.5, the board of directors of a common interest development or association is required, without approval of the owners, to delete any unlawful restrictive covenant and restate the declaration or governing document without the restrictive covenant but with no other change to the document. A board of directors of a common interest development or association is not required to obtain approval from the county recorder prior to removal of restrictive covenant language.

The law clarifies the lawful status of senior citizen housing, stating that lawful restrictions under state and federal law on the age of occupants in senior housing or housing for older persons shall not be construed as restrictions based on familial status.

County recorders, title insurance companies, escrow companies, real estate brokers, real estate agents, or associations are still required to place a cover page or stamp on the first page of a previously recorded declaration, governing document or deed provided to any person. The cover page or stamp must be in at least 14-point boldface type.

Click the following links to download model language that conforms to the requirements of Government Code section 12956.1, subdivision (b) (1).