Reader Questions - Can We Eliminate Exclusive Use Areas?

Hi Kelly,

Just read your article [on exclusive use common area] and was wondering the implication (pro and cons) and cost of transferring an exclusive common area into a Unit. That way, the owner gets full control of the common area as well as the maintenance responsibility.

Thanks,

P.R., San Francisco

Dear P.R.,

Converting exclusive use areas to become legally a part of a unit requires a change in the way the real estate interest is described, and so would requiring amending the condominium plan. Because amending a condominium plan requires approval of every owner and mortgage holder, it is usually not a practical option.

Exclusive use common areas often are a point of disputes in associations because many owners do not understand that an exclusive use patio or balcony, for example, is not “theirs” but is still owned in common by all the owners as part of the common area. A specific owner has the exclusive right to use the patio or balcony, but it is still subject to the ultimate control of the association. In real estate law, the right to use is different from ownership.

Associations often discuss who should maintain and repair such areas. When I update association CC&Rs, one of the first questions I ask is how the HOA has been allocating maintenance and repair responsibility, and how they would like to allocate such responsibility in the future. Clear CC&Rs can make the issue much less of a point of contention in associations.

There are many factors an association may wish to examine in deciding how to allocate responsibility to either the owners or the association. Certainly, one issue is owner independence, as owners may prefer to make their own decisions about how to maintain and repair their exclusive use areas. Another factor is that the more maintenance and repair is handled by individual owners, the less pressure on the budget and also less for the board and management to handle. On the other hand, some areas may be deemed important for HOA handling, such as perhaps balconies that if not maintained and promptly repaired could leak into units below. Some associations prefer to keep control of certain maintenance, because better cost control can be had by, for example, hiring one company to maintain all of the HVAC units. If responsibility is to be allocated to the individual owners, the association needs the right to enter residences to repair areas which an owner does not properly maintain or repair.

While Civil Code 4775 changed in January 2017, the new subpart (a)(3) did not change anything for California HOAs. Before the amendment, mainstream HOA lawyers agreed that, unless the governing documents stated otherwise, the homeowner maintained exclusive use areas, and the association repaired and replaced such areas. The statute, with subpart (a)(3), now makes that explicit statement. Associations desiring different maintenance and repair responsibilities can by membership vote amend their CC&Rs to reallocate that.

Another issue to consider is if a particular portion of the common area can be converted to exclusive use common area for one owner under Civil Code 4600. Unless any of the Civil Code 4600(b) exceptions apply, 67% of all owners must approve any conversion of common area to exclusive use common area.

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®.