Exclusive use common area is a portion of common area designated by the CC&Rs for the exclusive use of one or more, but fewer than all, of the owners within the association’s development. (Civ. Code § 4145(a).) Civil Code Section 4145(b) lists the following components as exclusive use common area, subject to any contrary provisions in an association’s CC&Rs:
“…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, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b).)
Modifying Provisions Contained in CC&Rs
The classification of the above components as exclusive use common area assumes that there are no contrary provisions in an association’s CC&Rs. If such contrary provisions exist, the CC&R provisions control. (Civ. Code § 4145(b).) Modern CC&Rs and condominium plans for condominium projects often contain provisions which clearly define what areas/components are exclusive use common area, as well as the owners maintenance obligations for those areas.
Maintained by Owner
The provisions of an association’s CC&Rs typically outline the scope of an owner’s maintenance responsibilities for the exclusive use common area appurtenant to his/her unit. In the event that such provisions are absent or ambiguous, Civil Code Section 4775 makes the owner responsible for maintaining the exclusive use common area.
“(a) Unless otherwise provided in the declaration of a common interest development…the owner of each separate interest is responsible for maintaining that separate interest and any exclusive use common area appurtenant to the separate interest.” (Civ. Code § 4775(a).)
“Designed to Serve a Single Separate Interest”
Civil Code Section 4145 states in pertinent part that “fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common area allocated exclusively to that separate interest.” (Civ. Code § 4145(b). (Italics added).) However, in the event that a particular fixture/component is not explicitly defined as exclusive use common area within the CC&Rs or condominium plan, the association may not solely rely on whether it believes that fixture/component “is designed to serve a single separate interest” when making the determination that the fixture/component is in fact exclusive use common area to be maintained by the owner. (See Dover Village Association v. Jennison (2010) 191 Cal.App.4th 123.)
Legislation Affecting Repair & Replacement of Exclusive Use Common Area
The maintenance responsibilities under Civil Code Section 4775 are somewhat ambiguous with regard to exclusive use common area; Section 4775 fails to state whether an owner is additionally responsible for the “repair and replacement” of exclusive use common area, not simply “maintenance.” HOA industry practice has held that it is the responsibility of the association to repair or replace exclusive use common area. Legislation that was signed into law on September 18, 2014 will resolve the ambiguity by codifying industry practice. Effective January 1, 2017, that legislation, AB 968 (Gordon), will amend Section 4775 to state that, unless otherwise provided for in the CC&Rs, the owner is required to maintain exclusive use common area, and the association is responsible to repair and replace exclusive use common area.
Exclusive Use Common Area Damaged Caused by a Member
Where damage to exclusive use common area is caused by the acts of the owner, the owner’s guest or tenant, any repair expenses incurred by the association may be recoverable through levying a reimbursement assessment against the owner. (See “Reimbursement & Compliance Assessments.”)
Related Case Law
- Dover Village Association v. Jennison
(2010) 191 Cal.App.4th 123
[Maintenance; Board Deference] The deference afforded to HOA Boards for maintenance decisions does not extend to the Board’s interpretation as to the scope of the HOA’s maintenance responsibilities under its CC&Rs.