Cal. Code Regs. tit. 2 § 12005

Current through Register 2024 Notice Reg. No. 16, April 19, 2024

Section 12005 - Definitions

As used in this subchapter, the following definitions shall apply:

(a) "Act" or "the Act" means the California Fair Employment and Housing Act, created by Government Code section 12900 et seq.

(b) "Adverse action" means action that harms or has a negative effect on an aggrieved person. The adverse action need not be related directly to the dwelling or housing opportunity forming the basis for the lawsuit or administrative complaint; for example, filing false allegations about a tenant with a tenant's employer may constitute adverse action. Adverse action includes:

(1) In dwellings that are rented, leased, or otherwise made available for occupancy whether or not for a fee, adverse actions include:

(A) Failing or refusing to rent or lease real property, falsely representing to an applicant that a property is unavailable, failing or refusing to continue to rent or lease real property, failing or refusing to add a household member to an existing lease, reducing any tenant subsidy, increasing the rent, reducing services, changing the terms, conditions, or privileges, applying inferior terms, conditions, or privileges, refusing to make necessary repairs, setting additional financial conditions not imposed on all tenants, threatening to or actually filing false reports with tenant reporting agencies, unlawfully locking an individual out of, or otherwise unlawfully restricting, access to all or part of the premises, harassment, termination, or threatened termination of tenancy, serving a notice to quit, filing an eviction action, evicting a tenant, refusing to provide a reasonable accommodation or reasonable modification, or engaging in any other discriminatory housing practice; or

(B) Refusing to complete forms, sign documents, allow inspections, comply with any public assistance, rental assistance, or housing subsidy program regulations, including refusing to make repairs to a housing accommodation to meet a governmental program's habitability standards, or take other necessary steps to facilitate access to the housing accommodation; or

(C) Taking any action prohibited by California Civil Code sections 1940.2(a), 1940.3(b), 1940.35, or 1942.5(c) or (e), or Code of Civil Procedure 1161.4(a);

(2) Taking any action prohibited by Article 24 regarding the consideration of criminal history information;

(3) Refusing to sell a dwelling or residential real estate or otherwise failing or refusing to enter into a residential real estate related transaction;

(4) Refusing to provide financial assistance related to a dwelling or residential real estate; or

(5) Taking other action that has an adverse effect on an aggrieved person.

(c) "Aggrieved person" includes any person who:

(1) Believes they have been injured by a discriminatory housing practice; or

(2) Believes that they will be injured by a discriminatory housing practice that is about to occur.

(d) "Assistance animals" include service animals and support animals, as described in subsections (1) and (2) below. An assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual's disability. See also, section 12185.

(1) "Service animals" are animals that are trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service animals do not need to be professionally trained or certified, but may be trained by the individual with a disability or another individual. Specific examples include, but are not limited to:

(A) "Guide dog," as defined at Civil Code section 54.1, or other animal trained to guide a blind individual or individual with low vision.

(B) "Signal dog," as defined at Civil Code section 54.1, or other animal trained to alert a deaf or hard-of-hearing individual to sounds.

(C) "Service dog," as defined at Civil Code section 54.1, or other animal individually trained to the requirements of an individual with a disability.

(D) "Miniature horses" meeting the requirements of 28 CFR 35.136(i) (March 15, 2011) hereby incorporated by reference and 28 CFR 36.302(c)(9) (October 11, 2016) hereby incorporated by reference.

(E) "Service animals in training," including guide, signal, and service dogs being trained by individuals with disabilities, persons assisting individuals with disabilities, or authorized trainers under Civil Code sections 54.1(c) and 54.2(b).

(2) "Support animals" are animals that provide emotional, cognitive, or other similar support to an individual with a disability. A support animal does not need to be trained or certified. Support animals are also known as comfort animals or emotional support animals.

(e) "Building" means a structure, facility, or portion thereof that contains or serves one or more dwelling units.

(f) "Business establishment" shall have the same meaning as in section 51 of the Civil Code. Business establishments include persons engaged in the operation of a business covered by section 51 of the Civil Code, insofar as the business is related to dwellings, housing opportunities, financial assistance, land use, or residential real estate-related activities. The term business establishment shall be broadly interpreted. For example:

(1) Entities engaged in the rental, sale, management, or operation of residential real estate, including common interest developments and mobilehome parks, constitute business establishments;

(2) Government bodies engaged in enacting legislation to implement governmental functions may not constitute business establishments; and

(3) Both nonprofit and for-profit organizations can constitute business establishments depending on the facts, but truly private social clubs not engaged in business activity are not business establishments.

(g) "Common use areas" means rooms, spaces, or elements inside or outside of a building that are made available for the use of residents of a building or the guests thereof. Examples of common use areas include hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, elevators, parking areas, garages, pools, clubhouses, dining areas, physical fitness areas or gyms, play areas, recreational areas, and passageways among and between buildings.

(h) "Complainant" means a person who files a complaint with the department alleging that the person has been aggrieved by a practice made unlawful by any law the department enforces and/or a person who files a civil action or counterclaim or raises an affirmative defense alleging that the person has been aggrieved by a practice made unlawful by any law the department enforces.

(i) "Criminal conviction" means a record from any jurisdiction that includes information indicating an individual has been convicted of a felony or misdemeanor.

(j) "Department" means the Civil Rights Department.

(k) "Directly-related conviction" means a criminal conviction that has a direct and specific negative bearing on the identified interest or purpose supporting the practice.

(l) "Discriminatory housing practice" means an act that is unlawful under federal or state fair housing law, including housing-related violations of the Fair Employment and Housing Act, the federal Fair Housing Act, the Unruh Civil Rights Act, the Ralph Civil Rights Act, the Disabled Persons Act, and the Americans with Disabilities Act.

(m) "Dwelling unit" means a single unit of a housing accommodation for a family or one or more individuals.

(n) "Financial assistance" includes the making or purchasing of loans, grants, securities, or other debts; the pooling or packaging of loans or other debts or securities, which are secured by residential real estate; or the provision of other financial assistance relating to the purchase, organization, development, construction, improvement, repair, maintenance, rental, leasing, occupancy, or insurance of dwellings, including:

(1) Mortgages, reverse mortgages, home equity loans, and other loans secured by residential real estate;

(2) Insurance and underwriting related to residential real estate, including construction insurance, property insurance, liability insurance, homeowner's insurance, and renter's insurance; and

(3) Loan modifications, foreclosures, and the implementation of the foreclosure process.

(o) "Housing accommodation" and "dwelling" are synonymous and includes:

(1) One or more dwelling units;

(2) Any building, structure, or portion thereof that is used or occupied as, or designed, arranged, or intended to be used or occupied as, a home, residence, or sleeping place by one individual who maintains a household or by two or more individuals who maintain a common household, and includes all public and common use areas associated with it, if any, including single family homes; multi-family housing; apartments; community associations, condominiums, townhomes, planned developments, community apartment projects, and other common interest developments as defined in the Davis-Stirling Common Interest Development Act (known colloquially as homeowner associations (HOAs)); housing cooperatives, including those defined under Civil Code 4100(d); rooms used for sleeping purposes; single room occupancy hotel rooms and rooms in which people sleep within other types of dwellings in which sleeping accommodations are provided but toileting or cooking facilities are shared by occupants of more than one room or portion of the dwelling; bunkhouses; dormitories, sober living homes; transitional housing; supportive housing; licensed and unlicensed group living arrangements; residential motels or hotels; boardinghouses; emergency shelters; homeless shelters; shelters for individuals surviving domestic violence, sexual assault, human trafficking, dating violence, stalking, or other forms of gender-based or interpersonal violence; cabins and other structures housing farmworkers; hospices; manufactured homes; mobilehomes and mobilehome sites or spaces; modular homes, factory built houses, multi-family manufactured homes, floating homes and floating home marinas, berths, and spaces; communities and live aboard marinas; and recreational vehicles used as a home or residence.

(3) Any building, structure, or portion thereof that is occupied, or intended to be occupied, pursuant to a transaction facilitated by a hosting platform, as defined in section 22590 of the Business and Professions Code, such as a website that enables property owners to list their spare room, apartment, or home for short term rentals.

(4) Any vacant land that is offered for sale or lease for the construction of any housing accommodation, dwelling, or portion thereof as defined in subdivision (2); or

(5) All dwellings as defined in and covered by the federal Fair Housing Act (42 U.S.C. § 3602(b)).

(p) "Housing opportunity" includes the opportunity to obtain, use or enjoy a dwelling, a residential real estate-related transaction, financial assistance in relation to dwellings or residential real estate, public or private land use practices in relation to dwellings or residential real estate, or other housing related privileges, services and facilities, including infrastructure or governmental services.

(q) "Includes" or "including" has the same meaning as "includes, but not limited to" or "including, but is not limited to."

(r) "Interior" means the spaces, parts, components or elements of an individual dwelling unit.

(s) "Legitimate" means that a justification is genuine and not false or pretextual.

(t) "Military or veteran status" includes, regardless of duty status or discharge status, a member or former member of:

(1) The United States Armed Forces pursuant to 10 U.S.C. § 101(a)(4) (including the Army, Marine Corps, Navy, Air Force, Space Force, and Coast Guard);

(2) The United States Armed Forces Reserve pursuant to 10 U.S.C. § 101(c) (including the Army National Guard and the Air National Guard);

(3) The California National Guard (including the California Air National Guard, California Army National Guard, and California State Guard);

(4) Any person determined to be on active duty or formerly on active duty status pursuant to 38 U.S.C. § 106(a)(1), including Women's Army Auxiliary Corps and Women's Army Corps; and

(5) Any person determined by a court to be a former or current member of active military service.

(u) "Nondiscriminatory" means that the justification for a challenged practice does not itself discriminate based on a protected basis.

(v) "Owner" means any person having any legal or equitable right of ownership, possession or the right to rent or lease housing accommodations, including the following if they hold such rights:

(1) A lessee, sublessee, assignee, managing agent, real estate broker or salesperson;

(2) An offeror of a housing accommodation pursuant to a transaction facilitated by a hosting platform, as defined in section 22590 of the Business and Professions Code, such as a website that enables property owners to list their spare room, apartment or home for short term rentals;

(3) A trustee, trustee in bankruptcy proceedings, receiver, or fiduciary;

(4) Any person that is defined as a "housing provider" in a statute, regulation or government program or that is commonly referred to as a "housing provider" in the housing industry;

(5) The state and any of its political subdivisions and any agency thereof;

(6) Agencies, districts and entities organized under state or federal law, and cities, counties, and cities and counties (whether charter or not), and all political subdivisions and agencies thereof; and

(7) Governing bodies of common interest developments, and members of common interest developments as defined in Civil Code Section 4160 in regard to their separate interests.

(w) "Person" or "persons" include:

(1) An individual or individuals;

(2) All individuals and entities that are included in the definition of "owner";

(3) All individuals and entities that are described in 42 U.S.C. § 3602(d) and 24 C.F.R. § 100.20, including one or more individuals, corporations, partnerships, limited liability companies, associations, labor organizations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy proceedings, receivers, and fiduciaries;

(4) All institutional third parties, including the Federal Home Loan Mortgage Corporation, Fannie Mae, and any other entities that comprise the secondary loan market;

(5) Community associations, condominiums, planned developments, and other common interest developments, including those defined in the Davis-Stirling Common Interest Development Act (Civil Code section 4000 et seq.) (known colloquially as homeowner associations (HOAs));

(6) The state and any of its political subdivisions and any agency thereof; agencies, districts, and entities organized under state or federal law; and cities, counties, and cities and counties (whether charter or not), and all political subdivisions and agencies thereof;

(7) Any entity that has the power to make housing unavailable or infeasible through its practices, including government entities and agencies, insurance companies, real estate brokers and agents, and entities that provide funding for housing; and

(8) "Person" shall be interpreted broadly.

(x) "Practice" or "practices" includes the following, whether written or unwritten or singular or multiple: an action, failure to act, rule, law, ordinance, regulation, decision, standard, policy, procedure, and common interest development governing documents pursuant to Civil Code sections 4205, 4340- 4370. Practice also includes "practices" as used in 24 C.F.R. Part 100.

(y) "Premises" means the interior or exterior spaces, parts, components, or elements of a housing accommodation, including individual dwelling units and the public and common use areas of a housing accommodation.

(z) "Private land use practices" include all non-governmental practices in connection with development and land use that are related to or have an effect on existing or proposed dwellings or housing opportunities including:

(1) Rehabilitation, transfer, conversion, demolition and development;

(2) Regulations and rules governing use of property and the conduct or characteristics of its occupants;

(3) Provision, denial of, or failure to provide infrastructure, services or facilities and land use that affect the feasibility, use or enjoyment of housing opportunities and existing and proposed dwellings;

(4) Covenants, deed restrictions, and other conditions or constraints on transfer or use of property, whether or not recorded with a county; and

(5) Other actions that make housing unavailable.

(aa) "Protected bases" or "protected classes" include race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, military or veteran status, age, medical condition, genetic information, citizenship, primary language, immigration status, arbitrary characteristics as protected by the Unruh Civil Rights Act, and all other classes of individuals protected from discrimination under federal or state fair housing laws, individuals perceived to be a member of any of the preceding classes, or any individual or person associated with any of the preceding classes.

(bb) "Public land use practices" include all practices by governmental entities, as those entities are defined in subsections 12005(v)(5), 12005(v)(6), 12005(w)(6), and 12005(w)(7), in connection with development and land use that are related to or have an effect on existing or proposed dwellings or housing opportunities including:

(1) Adoption, modification, implementation or rescission of ordinances, resolutions, actions, policies, permits, or decisions, including authorizations, denials, and approvals of zoning, land use permits, variances, and allocations, or provision or denial of facilities or services;

(2) Other actions authorized under the California Planning and Zoning Law (Title 7 (commencing with section 65000)), California Redevelopment Law (Health & Safety Code section 33320 et seq.), "Redevelopment Dissolution Law" (Division 24, Parts 1.8, 1.85 and 1.87), the Ellis Act (Government Code section 7060), the Mobilehome Parks Act (Health and Safety Code section 18200 et seq.), the Special Occupancy Parks Act (Health & Safety Code section 18860 et seq.), the California Relocation Assistance Act (Government Code section 7260 et seq.), the Surplus Lands Act (Government Code section 54220 et seq.), State Housing Law (Health and Safety Code section 17910 et seq., Government Code section 65580 et seq.) and other federal and state laws regulating the development, transfer, disposition, demolition, and regulation of residential real estate or existing or proposed dwellings, and the provision of public facilities and services and other practices that affect infrastructure, municipal services and community amenities in connection with housing opportunities;

(3) All practices that could affect the availability, feasibility, use, or enjoyment of housing opportunities;

(4) Allocation, provision, denial of or failure to provide municipal infrastructure or services, such as water, sewer, and emergency services, and other services, in connection with housing opportunities;

(5) Permitting of facilities or services that affect housing opportunities;

(6) Adoption, modification or implementation of housing-related programs, which include activities where a governmental entity, in whole or in part, owns, finances, develops, constructs, alters, operates, or demolishes a dwelling, or where such activities are done in connection with a program administered by, or on behalf of, a governmental entity, directly or through contractual, licensing, or other arrangements; and

(7) Other legislative, quasi-judicial, administrative, or other practices related to land use.

(cc) "Public use areas" means interior or exterior rooms or spaces of a building that are made available to the general public. Public use areas may be provided at a building that is privately or publicly owned.

(dd) "Residential real estate" means all real property, whether improved or unimproved, that includes or is planned to include dwellings, or is zoned or otherwise designated or available for the construction or placement of dwellings.

(ee) "Residential real estate-related transaction" includes:

(1) Providing financial assistance;

(2) Buying, selling, brokering or appraising of residential real estate; or

(3) The use of territorial underwriting requirements, for the purpose of requiring a borrower in a specific geographic area to obtain earthquake insurance, required by an institutional third party on a loan secured by residential real property.

(ff) "Respondent" means a person alleged to have committed a practice made unlawful by a law the department enforces and against whom a complaint has been filed with the department, against whom a civil action or counterclaim has been filed, or against whom an affirmative defense has been raised.

(gg) "Substantial interest," for purposes of subsection 12062(a)(1), means a core interest of the entity or organization that has a direct relationship to the function of that entity or organization.

(hh) "Substantial purpose," for purposes of subsection 12062(b)(1), means the purpose is integral to the non-business establishment's institutional mission.

Cal. Code Regs. Tit. 2, § 12005

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12927, 12948, 12955, 12955.6, 12955.8, 12956.1 and 12956.2, Government Code; and Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578.

Note: Authority cited: Section 12935(a), Government Code. Reference: Sections 12920, 12921, 12926, 12927, 12948, 12955, 12955.6, 12955.8, 12956.1 and 12956.2, Government Code; and Auburn Woods I Homeowners Ass'n v. Fair Employment and Housing Com'n (2004) 121 Cal.App.4th 1578.

1. New subchapter 7 (articles 1-24, sections 12005-12271 ), article 1 (sections 12005-12010 ) and section filed 9-16-2019; operative 1/1/2020 (Register 2019, No. 38).
2. Amendment of section and Note filed 11-19-2021; operative 1/1/2022 (Register 2021, No. 47).
3. Change without regulatory effect amending subsection (j) filed 3-20-2023 pursuant to section 100, title 1, California Code of Regulations (Register 2023, No. 12).
4. Amendment of subsections (b)(1)(A), (o)(2), (v)(7) and (bb) filed 11-22-2023; operative 1/1/2024 (Register 2023, No. 47).