Divisive Political Climate and Unruh Act Claims: Potential Implications for Homeowners Associations

September 11, 2020

By: Nicholas Meerson

It is no secret that the United States in 2020 is a more divided place than in recent memory. A combination of COVID-19 and social and political forces exacerbated by the media has led many of us to feel as though we are living through a period of heightened tension, mistrust, and anxiety, whether perceived or real. This unfortunate set of circumstances extends to homeowners associations, where people of all ethnic backgrounds and worldviews reside in close proximity to one another.

Given the state of affairs, such common interest communities should be wary of the rise in Unruh Civil Rights Act claims against them. An individual brings such a claim when he or she believes that he or she has been discriminated against based on “sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.” (Unruh Civil Rights Act § 51(b)). Such claims can either be lodged through a Complaint to the Department of Fair Employment and Housing (“DFEH”) or through a formal lawsuit.

Whether a claim is legitimate or not must be decided on a case by case basis, as the specific facts of each action dictate whether or not a violation has occurred. A claimant or plaintiff may attempt to leverage his or her alleged protected status to extract a settlement out of the homeowners association in an attempt to dissuade an association from strongly defending their position. The argument that the claimant’s or plaintiff’s case would be viewed favorably in front of a diverse jury is often employed as a justification.

Aside from the merits of each case, these actions can have very real implications for the functioning of a homeowners association. Whether it is a DFEH claim or outright litigation, an association must defend itself – either by the association’s general counsel or by counsel retained through the association’s insurance. In both scenarios, the costs of defense, even if the matter settles, can increase insurance premiums moving forward.

In addition, associations should take extra precautions to enforce their CC&Rs, Bylaws, and any other governing documents, as well as the relevant provisions of the Davis-Stirling Act. Strict compliance with the rules can minimize a claimant’s or plaintiff’s ability to justify a claim. Thus, it is imperative that associations work with their general counsels to update their rules to ensure compliance with all applicable laws, and enforce their governing documents in a uniform and precise manner.

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