Reader Questions - Patios, Planned Developments

Kelly,

I live in a condo in Laguna Niguel, CA. I have a small patio (ground level). It would be really nice to be able to have a slightly larger patio. There is a common area that runs along the back of my condo which is next to my existing patio. I would love to be able to enlarge my patio to extend to the end of my unit and make it a permanent part of my patio by walling it in.

Are there any laws that would prevent me from even considering taking this suggestion before the Board of my association?

Thank you for your help.

C.H., Ladera Ranch

Dear C.H.,

Your board may have the discretion to approve enlargement of your patio, but it also may not. Your patio is probably an “exclusive use common area”. If you expand your patio, you would be expanding your exclusive use area into the non-exclusive common area. The non-exclusive common areas exist to benefit all members. Civil Code 1363.07 limits the board’s ability to grant exclusive use rights to a member except within specified narrow exceptions. If an exception does not apply, the additional exclusive use area would require a 67% vote of all members.

If one of the exceptions in 1363.07 applies, it may be worthwhile to request permission to expand your patio, although the board does not have to grant the request. However, if no exception applies, it probably is not worth the effort to seek approval of 67% of all the members – many HOAs do not achieve that level of participation even for their board elections, so the success of your individual request would be unlikely.

With architectural modifications always check with your HOA first. In the HOA world, it is NEVER “better to ask forgiveness than permission.”

Thanks for your question,
Kelly

Kelly,

How can I get a concise explanation of the difference between a Condominium and a PUD?

Thanks,

E.S., San Juan Capistrano

Dear E.S.,

California does not have “P.U.D.’s” or “Planned Unit Developments”. The Davis-Stirling Act recognizes “planned developments,” condominiums, stock cooperatives and community apartments (aka “own-your-owns”) as common interest developments. By far the most common forms are the condominium and the planned development. Almost all recent (since 1980) HOAs are either a condominium or planned development. To determine which type is your association, do not look at the buildings! There are condominium associations in which the residences are detached from one another, while there are also planned developments in which the residences are attached.

The first page of your HOA CC&Rs should state whether yours is a planned development or condominium. Also, if your deed contains a legal description which refers to your interest as a “lot”, that indicates a planned development. If your deed references the word “unit”, you own a condominium.

In a planned development, you own a “lot,” and perhaps a share of the common area, if there is any. However, often the association owns any common area. In a condominium, you own a “unit” consisting typically of airspace, and then a shared interest in the “everything else” other than the units – the “common area.”

Best regards,
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®.