Granting Exclusive Use of Common Area

A HOA’s board of directors is limited in its authority to grant the exclusive use of any portion of the association’s common areas to a member. Unless the association’s governing documents specify a different percentage, the board may not grant a member the exclusive use of any portion of common area without the approval of at least sixty-seven percent (67%) of the association’s members. (Civ. Code § 4600(a).)

Exceptions to Member Approval Requirement
No membership approval is required when a grant of exclusive use of common area falls into one of the following categories:

  • Reconveyance to Subdivider – no membership approval is required when the grant serves to reconvey “all or any portion of that common area to the subdivider to enable the continuation of development that is in substantial conformance with a detailed plan of phased development submitted to the Real Estate Commissioner with the application for a public report.” (Civ. Code § 4600(b)(1).)
  • Conformance with Development Plan or Governing Documents – no membership approval is required for a grant of exclusive use “that is in substantial conformance with a detailed plan for phased development submitted to the Real Estate Commissioner with the application for a public report or in accordance with the governing documents approved by the Real Estate Commissioner.” (Civ. Code 4600(b)(2).)
  • Engineering Errors – no membership approval is required when the grant of exclusive use is to “eliminate or correct engineering errors” in recorded documents or on file with a public agency or a utility company. (Civ. Code § 4600(b)(3)(A).)
  • Enroachments Caused by Errors in Construction – no membership approval is required when the grant of exclusive use is to “eliminate or correct encroachments due to errors in construction of any improvements.” (Civ. Code § 4600(b)(3)(B).)
  • Changes in the Plan of Development – no membership approval is required when the grant of exclusive use is to “permit changes in the plan of development submitted to the Real Estate Commissioner in circumstances where the changes are the result of topography, obstruction, hardship, aesthetic considerations, or environmental conditions.” (Civ. Code § 4600(b)(3)(C).)
  • Fulfill Requirement of a Public Agency – no membership approval is required when the grant of exclusive use is needed to fulfill the requirement of a public agency. (Civ. Code § 4600(b)(3)(D).)
  • Transfer Maintenance Burden for Unused Area – no membership approval is required when the grant of exclusive use is being used to transfer the burden of management and maintenance of a portion of common area that is generally inaccessible and not of general use to the association’s membership. (Civ. Code § 4600(b)(3)(E).)
  • Disability Accommodation – no membership approval is required when the grant of exclusive use is being issued to accommodate a disability. (Civ. Code § 4600(b)(3)(F); See also “Architectural Accommodations for Disabled Residents.”)
  • Assign an Unassigned Exclusive Use Area – no membership approval is required when the grant is being used to assign a parking space, storage unit, or other amenity, that is designated in the CC&Rs for assignment, but is not assigned by the CC&Rs to a specific separate interest. (Civ. Code § 4600(b)(3)(G).)
  • Run/Install Utility Lines & Meters for EV Charging Station – no membership approval is required when the grant is being used to run/install utility lines and meters over common area that are needed for the installation and use of an electric vehicle (EV) charging station in an owner’s garage or designated parking space. (Civ. Code § 4600(b)(3)(H); See also “Electric Vehicle Charging Stations.”)
  • Install/Use EV Charging Station via License Agreement – no membership approval is required when the grant is being used to allow the installation and use of an EV charging station on common area through a license granted by the association under Civil Code Section 4745(g). (Civ. Code § 4600(b)(3)(I); See also “Electric Vehicle Charging Stations.”)
  • Comply with Governing Law – no membership approval is required when the grant is needed to “comply with governing law.” (Civ. Code § 4600(b)(3)(J).)

Procedural Requirements in Obtaining Approval

Election via Secret Ballot
When a proposed grant of exclusive use will require membership approval, the election must be held by secret ballot in accordance with the procedures set forth in Civil Code Section 5100 et seq. (Civ. Code § 5100(a); See also “Balloting Requirements & Procedures.”)

Disclosures: Monetary Consideration; Insurance Responsibilties
When a proposed grant of exclusive use will require membership approval, the ballot measure placed before the members must specify:

(a) Whether the association will receive any monetary coonsideration (payment) for the grant; and

(b) Whether the association or the grantee will be responsible for providing insurance coverage for the granted area. (Civ. Code § 4600(c).)

Enforcement by Member
Where an association violates the procedural requirements applicable to granting exclusive use of contained in Civil Code Section 4600, a member of the association may bring a civil action against the association for declaratory, equitable, and/or injunctive relief within one (1) year of the date the cause of action accrues. (Civ. Code § 4605(a).) If the member prevails, the court may impose a civil penalty against the association of up to five hundred dollars ($500) for each violation. (Civ. Code § 4605(b).)

Attorney’s Fees – If a member prevails in the action against the association, the member is also entitled to recover his/her reasonable attorney’s fees and court costs. By contrast, if the association prevails, it is not entitled to recover any costs, unless the court finds the member’s action “to be frivolous, unreasonable, or without foundation.” (Civ. Code § 4605(b).)

Distinct from “Exclusive Use Common Area”
Granting a member the exclusive use of a portion of common area is distinct from an area which is already designated under the association’s CC&Rs for the member’s exclusive use. (See “Exclusive Use Common Area.”)

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