What and Where Is “Exclusive Use Common Area”? Part 1

The typical condominium project consists of three categories of property – the “separate interest” (normally called the “unit”), the common area, and a subset of common area called “exclusive use common area.” Misunderstandings regarding exclusive use area lead to many disputes. Simply put, exclusive use areas are not “your” property, but a part of the commonly owned property set aside for one member’s use. A better understanding of exclusive use area, what it is, who controls it, and who takes care of it can help prevent disputes in condominium associations.

The unit is normally described in the “notes” portion of the condominium plan, a recorded (but often overlooked) document. There are many portions of a normal condominium project which are outside of the unit boundaries but intended for the use and enjoyment of a single unit owner. These parts are called “exclusive use common area”.

The description of some exclusive use common areas might be found in the Condominium Plan or CC&Rs. Civil Code Section 4145 provides the default definition if the governing documents do not fully cover the topic, including: “shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest…”. Fixtures serving a single unit but existing outside of the unit boundaries may include water heaters or air conditioning equipment, for example.

Many condominiums are bought with the mistaken belief that the exclusive use area, such as, for example, a balcony, is “theirs” and the HOA cannot dictate how it is used. However, the balcony is still common area, and the association can limit how the homeowner uses it. Associations often have rules regarding use of particular exclusive use areas such as balconies or patios. Many non-compliant members may not understand that their use of exclusive use common area is not unlimited.

Who maintains exclusive use common area? Who repairs it? Is the broken window or leaky water heater an association concern? The inquiry usually starts by reviewing the governing documents regarding the area in question to determine if it is exclusive use common area, followed by analyzing who maintains it and who repairs it — and the two responsibilities might not be placed on the same party.

If governing documents do not answer the question, the Davis-Stirling Common Interest Development Act fills in the blanks. Under Civil Code 4775, the association repairs, replaces and maintains common area and repairs and replaces exclusive use common area, and the member maintains exclusive use common area, unless the CC&Rs state otherwise.

Note that since 2017, only association CC&Rs can allocate repair and maintenance responsibility differently than Civil Code 4775. Therefore, many association rules presently in place may be invalid to the extent they purport to allocate such responsibility.

Exclusive use areas are often misunderstood as the unit owner’s property, but such areas are still part of the common area and therefore jointly owned with all other owners and subject to association control. “Use” is different than “control”, and maintenance responsibility may be allocated differently than repair responsibility. Exclusive use is a necessary complication of shared ownership, but better understanding will reduce conflict.

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®.