Reader Questions - Can Board Just Give Them Some Space?

c c & rs h o a homefront legislation reader questions Oct 30, 2017

Dear Mr. Richardson,

My HOA has a board that changes all the time. People with agendas run and many times they leave after one year. The question is whether the HOA can continually “grant” various owners rights into the greenbelt/common area. Shouldn’t there be disclosures to the entire membership of each and all such rights granted, and not just adjoining neighbors? In theory we all own the common area, and it is being chopped up and “permitted” to be used exclusively by many individual owners.

If this is a question that you are able to answer I would appreciate it.

Thanks,

P.W., Unincorporated S. Orange County

Dear P.W.,

The Davis-Stirling Act limits the ability of HOA boards to give exclusive use rights over HOA common area. About eleven years ago, the statute now known as Civil Code 4600 was added to the Act, barring HOA boards from granting exclusive use rights to a homeowner unless 67% of all the HOA members approved it.

The statute ties the hands of HOA boards, but for a good reason. Common area other than exclusive use common area is an asset for all residents. Green belts, planted areas, walkways and other common areas may be adjacent to individual residences, and it is natural that homeowners may wish to expand their “personal space” by gating off walkways, or fencing off more yard area. However, this would detract from the rest of the community, which benefits from the feeling of openness that comes from such areas remaining purely common and shared, and not converted to a single owner’s use.

Homeowners often can be angry with the HOA attorney because they want to take over some common area (or already have done so without HOA permission) only to discover that the HOA board cannot do so, even if they wished to allow it. Civil Code 4600 requires a homeowner membership vote, upon 30 days’ notice, using the same double envelope secret ballot process as with board elections. Of course, I didn’t write Civil Code 4600, but that doesn’t matter to a homeowner frustrated by not getting what they want. But if the board violates the statute in this regard, the act could be set aside by a later board or by court order (Civil 4605).

There are some narrow exceptions to vote requirement of Civil 4600. The most commonly applicable is if the area in question is inaccessible to other owners and shifting control of the area would relieve the HOA of maintenance responsibility (4600(b)(3)(E)). If that exception applies, the board may, but is not required to, grant exclusive use rights.

Any time exclusive use rights are granted, the HOA should make sure a written agreement is obtained with the owner, documenting that the area still is common area and requiring that the owner assume all maintenance and repair responsibility for the area. Such an agreement can be prepared by the HOA’s attorney, and should be filed with the County Recorder to make sure future owners know of the agreement.

*p.s.: A board continuously in flux can create (or indicate) a problem. For some continuity, bylaws should prescribe two-year terms, with staggered terms so that the entire board is not running each year.

Thanks for your question,
Kelly


Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.