During an Association Board meeting I recently attended I was asked, “what can the Board do about a birth home?” I thought I had heard it all. For months, seemingly transient activity was taking place in a home within this North Orange County planned development community. Unfamiliar people were seen coming and going through all hours of the day and night. Neighbors observed what was described as suspicious activity and have concluded that a birth home is being operated out of the residence.

In the most basic sense, a birthing home is a facility usually run by nurse-midwives that provides a less institutionalized setting than a hospital, for women who wish to deliver by natural childbirth. However, in the extreme these homes or birthing centers are residences used solely for the arrival of pregnant woman who reside there to give birth.

In March 2015 Federal Agents stormed 37 properties throughout Southern California investigating what was then called illegal “birth tourism”, the practice of foreign pregnant woman, primarily Chinese, traveling to American to give birth in so called maternity hotels. This was the result of an investigation by the County of Los Angeles into maternity hotels after receiving complaints about 97 county locations being used as maternity hotels, 18 of which were shut down due to zoning violations. Eventually the complaints were referred to state and federal agencies including the Department of Homeland Security. Many of these maternity hotel sites were relatively unrecognizable, if not for the number for cars parked out front.

Although the majority of the maternity homes seem to arise in apartment complexes, it should come as no surprise that the issue has sprouted in community associations. The focus of this article is not to debate legal, emotional or philosophical pros and cons of birth tourism or maternity hotels in our communities. Rather, the focus here is to examine how our association boards and managers can address birthing homes in their communities.

With such issues as social media, advanced technology, and millennials impacting our communities at a rapid pace, it’s a bit of an enigma to be discussing well into the 21st Century, something as seemingly primitive as birthing homes. The idea of people coming to your community (whether as residents or guests) for the sole purpose of giving birth is unfamiliar, if not offensive. At the outset, birthing homes do not fall within the statutory definition of “day care centers” that are allowed in residential communities under certain conditions. There are no known constitutional or statutory protections specifically for birthing homes. As such, they are subject to enforcement. Associations should address this unusual use of a separate interest using the same tools we use to address other incompatible uses of a community residence.

Know who is living in your community

Viewed broadly, having residents or “occupants” of a birthing center come and go for short periods of time is not unlike the dreaded short term rental of a residence that is plaguing many of our associations. Care should be taken to know who is residing in our homes; whether they are owners or tenants. Civil Code Section 4740 provides a first line of defense by requiring an owner to disclose who is “renting” a home. “Subsection (d) requires an owner to provide the association verification of the date the owner acquired title to the separate interest and the name and contact information of the prospective tenant or lessee or the prospective tenant’s or lessee’s representative.”

Address the conduct observed

The discovery of a birthing home in your community likely will be triggered by some unusual activity or conduct that someone observed and reported. Associations must be cautious to investigate these matters based on the conduct being committed and its impact on the community, not who is committing it. Associations should avoid targeting a resident based upon their appearance or nationality. Be cautious about approaching someone based upon rumor, speculation or looks and winding up on the wrong side of a discrimination claim.

Tell-tale signs of activity subject to enforcement under the governing documents are:

  • Parking: Is there an excessive or unusual number of cars parked in or around the residence, interfering with streets, driveways or guest parking.
  • Noise: Is there unreasonable or excessive noise; maybe at unusual hours.
  • Foot Traffic: Does there tend to be a number of unfamiliar people or large groups entering or exiting the residence. Is unusual activity observed?
  • Trash: Is there excessive waste or unusual materials being disposed of.

Let the enforcement begin

Once you have identified an unusual or prohibited use or activity, traditional methods of rule enforcement and due process apply. Consider the following while you use the governing documents as your guide: Is there an unauthorized business use of the home? A birthing home is not a single-family residential use. Check to see what uses are allowed and what uses may be prohibited by the governing documents and whether non-residential commercial use is prohibited?

Does the observed activity violate the nuisance clause in the CC&Rs? Your CC&Rs likely contain the standard provision prohibiting noxious or offensive activity or any conduct which is or may become a nuisance, or an unreasonable annoyance or interference with a resident’s quiet enjoyment. Many activities observed in a community association may be considered by someone as a nuisance. Be sure that the observed activity is unreasonable or is having an impact on the community as a whole, and not just a dispute or annoyance between neighbors.

Such activity may include:

  • People
  • Noise
  • Traffic
  • Parking
  • Trash
  • Unapproved architectural modifications
  • Regular presence of emergency medical technicians, vehicles, etc.
  • Improper disposal of medical waste

Do the governing documents mandate compliance with local, State and Federal laws? One area that often is overlooked by associations in enforcement is compliance with laws outside the governing documents. Whether its animal control laws or housing restrictions, the laws on the books in our cities, our State or the Federal Government can assist associations in addressing certain offensive conduct or activity in our communities. With respect to birthing homes, issues such as licensing, health and safety, insurance and zoning restrictions are likely to have an impact.

Finally, board’s and management should be resourceful in tapping into the governmental agencies available to assist with the investigation and enforcement. Just as we look to animal control to assist with pet behavior, associations should look to such agencies as the Department of Health and Safety, zoning, and/or code enforcement to provide support. Even the Department of Homeland Security may become involved as experienced by one North Orange County planned development community association. Such organizations may be invaluable in assisting with investigating the conditions observed and ultimately with enforcement or removal of the birthing home from the community.

Written by Matt D. Ober

Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC. 

 

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