The topic of residential care facilities (also known as community care facilities) is a touchy one. Right now, in the city where I live -- as well as in some near-by towns -- there is a bit of a community uproar over the increased presence of such facilities in so-called "traditional" neighborhoods.

The term residential care facility covers a variety of uses, ranging from foster family homes to adult care to facilities providing rehabilitative services to those recovering from mental illness. Regrettably, there is frequently a great deal of "not in my back yard" sentiment expressed when the issue of residential care facilities arises.

The California Association of REALTORS^® (CAR) has produced a memorandum (Residential Care Facilities) that covers a wide variety of such facilities, and it makes clear that there are often subtle differences in the law with respect to the individual types. Nonetheless, the similarities -- especially with respect to real estate disclosure issues -- greatly outweigh the differences.

Probably the most significant common element among the various types of facilities is that most of the relevant laws are addressed to those which serve six or fewer persons. That is what we will consider here. To determine the "six or fewer" the following are not included: a licensee-care giver, the members of the care giver's family, or staff personnel.

Having noted that there are occasional variations in the law with respect to different types of facilities, for purposes of our discussion we will focus on the issues as they relate to a type of facility that often stirs controversy: an Alcoholism and Drug Abuse Recovery or Treatment Facility. What is said about this type of facility generally applies to the others.

First, we note that, under California law, these properties "must not be subject to any business taxes, local registration fees, use permit fees, or other fees to which other single-family dwellings are not likewise subject... Furthermore, whether or not unrelated persons are living together, an alcoholism or drug abuse recovery or treatment facility which serves six or fewer persons must be considered a residential use of property for the purposes of this article. (Cal. Health and Safety Code 11834.22) In addition, the residents and operators of such a facility must be considered a family for the purposes of any law or zoning ordinance which relates to the use of property pursuant to this article."

So, what does all this mean with respect to disclosure duties? Suppose there is an alcoholism or drug abuse recovery facility next door. Is there an obligation upon either the real estate agent or the seller to disclose that fact to a potential buyer? No.

The analysis is two-fold.

1. There is an affirmative duty to disclose the existence of a nuisance affecting the property. However, the existence of such a facility cannot in and of itself be considered a nuisance. By law, anything which is done or maintained under the express authority of a statute -- as a recovery facility would be -- cannot be considered a nuisance. Of course, if there were constant loud noises or traffic problems, those could be considered nuisances.

2. There is an affirmative duty to disclose material facts that might affect the value or desirability of a property. However, the California attorney general's office has already issued an opinion that the location of a licensed care facility cannot be a material fact. After all, the Health and Safety Code has determined that "a residential facility which serves six or fewer persons shall be considered a residential use of property and a use of property by a single family." A residential use of property by a single family cannot be considered a material fact adversely impacting a neighboring property.

Well, ok, there may not be a duty to disclose the existence of such a facility; but what about volunteering the information? The CAR memorandum counsels caution in this regard. It points out that both alcoholism and drug addictions are considered to be handicaps under the law. "Therefore, volunteering information concerning the presence of an alcoholism or drug abuse recovery or treatment facility may violate state and federal law prohibiting discrimination based upon a person being handicapped."

And what if an agent were asked about the presence of a care facility? Can they answer? Yes, providing that the response is "factual, not intended to aid discrimination against or segregation of licensed care facilities within the community, and in fact does not have that effect."

While the CAR memorandum particularly addresses California law, it also makes it quite clear that this state law often mirrors, or is superseded by, federal law.

Bob Hunt is a director of the California Association of Realtors®. He is the author of Real Estate the Ethical Way.