What IS Exclusive Use Common Area

By Kelly G. Richardson, Esq., HOA Homefront Column  

Condominium projects typically consist of three categories of property – the “separate interest” (normally called the “unit”), the “common area”, and “exclusive use common area.” Misunderstandings regarding exclusive use areas lead to many regrettable disagreements. Simply put, exclusive use areas are not “your” property, but are a portion of the common area set aside for one member’s use.

Units are normally defined in the “notes” portion of the recorded condominium plan (sometimes called a “subdivision map”), an important yet often overlooked document. While some developers have become more creative, the typical condominium unit configuration is a box of airspace surrounded by the unfinished surfaces of walls, ceilings, and floors. Everything else is “common area.” However, the areas that are common area but are clearly intended for the use of a single unit owner are called “exclusive use common area.”  

Exclusive use common areas are sometimes defined in the Condominium Plan or CC&Rs, but Civil Code 4145 provides a 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 …, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest…”. Examples of fixtures serving a single unit but existing outside of the unit boundaries may include water heaters or air conditioning equipment.

Garages or parking spaces may or may not be exclusive use common area, depending upon the Condominium Plan. Most often they are not actually owned by the unit owner, but simply allocated for a designated owner’s use. Nevertheless, I often see condominium sellers mistakenly “selling” a parking space that they actually do not own because it is common area.

Many homebuyers purchase condominiums with the mistaken belief that exclusive use areas, such as a balconies or patios, are “theirs,” but they don’t own it. Such homeowners mistakenly believe that because their use of a certain area is exclusive, then their control of that area is also exclusive. Consequently, they erroneously believe that the HOA has no say regarding their use of exclusive use areas. That leads to enforcement situations and disputes, because associations can and do control how such areas are used and often have various rules regulating their use.

Who maintains exclusive use common area? Who repairs it? Is the broken window or leaky water heater an association or homeowner concern?  The inquiry usually starts by reviewing the CC&Rs to determine if the document answers the question regarding who maintains it and who repairs it -- and the two responsibilities might not be placed on the same party.

If the CC&Rs do not answer the question, the Davis-Stirling Act fills in the blanks. Under Civil Code Section 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 per Civil Code 4775 HOAs can only allocate repair and maintenance responsibility in the CC&Rs – HOAs cannot do this in bylaws or rules. Therefore, many association bylaws or rules may be invalid if they purport to allocate those responsibilities.

Exclusive use areas are a necessary complication of shared ownership but better understanding will reduce conflict.