Reader Questions - How Exclusive is Exclusive Use Area? Part 2

Hi Kelly,

I live in a condo complex in which the restricted common area is the front and back yards of each unit. The board says it has the authority to grant permission to an owner to make room additions in the backyard. I do not believe they have such authority as it would be “giving” ownership of the restricted common area which would then be enclosed in his unit. Do you believe the owner can build an addition to his unit?

Thank you, P.W., San Diego

 

Dear P.W.,

First, the unit is not defined by what the board says, but by the condominium plan. That recorded document is part of the legal description of the condominium. If one adds living space to the unit, that new living space, outside the boundaries of the original unit, is still common area. This could create a significant disclosure problem for members, who surely will want to disclose the larger square footage even though they do not own that space.

If such a modification to a home were to be allowed, a written agreement between the HOA and the homeowner is essential. Such agreement should, at a minimum, reflect that the homeowner is responsible for the new structure, the HOA has no responsibility to insure, repair or maintain it, and it still is common area.

Another issue is whether the board violated Civil Code 4600, which requires a 2/3 vote of the membership before the HOA allows a homeowner to convert “pure” common area to exclusive use. Some may argue that the area already was exclusive use. There are also some exceptions to the voting requirement, but the association’s legal counsel should be consulted.

Best regards,
Kelly

Kelly,

Our HOA common area sprinkler timer control box is mounted at our master bedroom windows. If you stand looking into that box you are also looking into our entire master bedroom and bathroom. Entrance to this strip behind our home requires passing through two privacy gates, one into our side yard and then one into the strip behind our home. Twice the vendor has come though both gates and stood at the box without giving us “reasonable notice”. Those areas are “exclusive use” areas. It’s totally unreasonable to allow anyone to stand at someone’s master bedroom window without a good reason and notice. Do we have a legal right to demand “reasonable notice” prior to them coming into that area?

D.S., El Dorado Hills

 

Dear D.S.,

Many association CC&Rs have sections permitting the association to enter into a member’s property in order to maintain the common area. A sprinkler box is a basic item for landscaping maintenance, and so would be a legitimate need for the HOA. The yard area you describe is apparently exclusive use common area, and so technically is not your property. Your privacy concern is a legitimate concern, and hopefully the board would consider that and ask the vendor to at least knock on your front door before they enter the yard. That is courtesy, and not necessarily a legal requirement. Another possibility might be for you to propose to share with the HOA the cost of relocating the box to an area more accessible for landscaping workers.

Thanks and sincerely,
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®.