Reader Questions - Exclusive Use Common Area

Dear Kelly,

What is exclusive common area? I’m in a townhome community. Are fences between connected townhomes exclusive common area that the HOA has responsibility for?

Thank You,

J.S., Westminster

Dear J.S.,

Assuming the condominium units are air space blocks (check the Condominium Plan to confirm), the fences, being outside the units, would likely be common area. If your HOA governing documents (CC&Rs, bylaws, rules) do not address the fences, they are most likely HOA responsibility.

Your HOA counsel should be able to answer this quickly. Thanks,
Kelly

Mr. Richardson,

If the HOA is responsible for maintaining the exclusive use common area, let’s say for example, the balcony, can they appear without notifying the unit owner? Can the HOA, its agents or representatives access the balcony at any time they please? 

Thank you, 

A.Z., Palo Alto

Dear A.Z.,

Most association governing documents give the association a right of access to exclusive use common areas for the purpose of making repairs. If an area can be accessed without entering a unit, the documents might not require advance notification. However, good neighbor relations would benefit from the courtesy of advance notice, even if not required.

Thanks for your question,
Kelly

Hi Mr. Richardson,

I manage a condo that has its own balcony. My tenants want to install a small TV dish on the balcony railing. The association board says that the only way they will allow a dish to be installed is on a tripod on the deck of the balcony. The tenants have a young son, and they are concerned that he may tip the tripod and dish over on himself. My question is does Assembly Bill 968 that revises Civil Code 4775 Section 1 and 2 grant more rights to occupants of exclusive use areas such as a balcony?

Thanks for any help that you can give me.

N.G., Carpinteria

Dear N.G.,

AB 968 (from 2014) does not change homeowner rights regarding exclusive use common area. The bill, effective in 2017, confirms what most HOA lawyers have been saying for years – that unless the governing documents say otherwise, the HOA repairs and replaces exclusive use areas. Until 2017, Civil Code Section 4775 appears to have a gap, since it does not specifically allocate repair and replacement responsibility for exclusive use areas. The change in the language makes explicit what had previously been implicit, so it will not change anything in 2017.

If an association’s governing documents cover the topic of repair, the law does not apply. If the governing documents do not address the topic, there should be no change, since HOAs already were responsible – the amendment simply spells it out more clearly. If your association wishes to allocate repair and replacement responsibility differently than the Civil Code, the association members can vote to approve amendments to the CC&Rs.

Satellite dishes are governed by the Federal Communication Commission’s “Over The Air Receiving Devices” (aka “OTARD”) Rule. Under this Rule, homeowners have certain protections for use of dish antenna. However, associations are not required to allow attachment to common area, and balcony railings in an airspace condominium unit are likely common area (see the Condominium Plan or check with the HOA’s attorney to make sure). For more information on the OTARD Rule, visit https://www.fcc.gov/guides.

Thanks,
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®.