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Transfer Fees

With the exception of certain entities that qualify under Civil Code Section 4580, an association may not impose or collect any assessment, penalty, or fee in connection with the transfer of title of any property within the association’s development. (Civ. Code § 4575.)

*Exception – Actual Costs & Escrow Document Fees
Notwithstanding the above, an association is permitted to charge the following fees and costs in connection with the transfer of title of a property within the association’s development:

Deed-based Transfer Fees
The foregoing does not apply to a “transfer fee” as defined under Civil Code Section 1098. Such transfer fees are not imposed by an association, but are “imposed within a covenant, restriction, or condition contained in any deed, contract, security instrument, or other document affecting the transfer or sale of, or any interest in, real property that requires a fee be paid as a result of transfer of the real property.” (Civ. Code § 1098.) The requirement to pay such a transfer fee is often recorded by a CID’s developer at the inception of the CID within each of the owner’s respective deeds.

Transfer Disclosures & Escrow Documents

Seller’s Duty to Disclose Information
Civil Code Section 4525 requires an owner of a property within an association to provide various items of information and documents to a prospective purchaser of the owner’s property “as soon as practicable before the transfer of title or the execution of a real property sales contract.” (Civ. Code § 4525(a).) Because the association is not a party to the transaction between the owner and the prospective purchaser, the association has no general duty to disclose information to the prospective purchaser:

“The Association cannot be expected to make disclosures so as to impart information in relation to every possible sale of a unit within the development. Were there such a requirement, the Association’s time could be consumed with the preparation of disclosure statements. Any such rule would also render redundant the procedure of annual reports, meetings, and the disclosures of budgets established by statute.” (Ostayan v. Nordoff Townhomes HOA (2003) 110 Cal.App.4th 120, 130).

However, in order for the owner/seller to provide the prospective purchaser with the required documents, the association is obligated to furnish those documents to the seller upon the seller’s written request for the same (discussed further, below).

Additional Duty to Disclose Defect-Related Information – In addition to the documents and information which must be provided under Section 4525, Civil Code Section 4535 places additional duties upon an owner/seller to disclose defect-related information to a prospective purchaser required under Civil Code Section 1134. Before the transfer of title, the seller must deliver to the prospective purchaser a written statement listing all substantial defects or malfunctions in the major systems in the unit and common areas, or a written statement disclaiming knowledge of any such substantial defects or malfunctions. (Civ. Code § 1134(a).) “Major systems” includes, but is not limited to, the roof, walls, floors, heating, air conditioning, plumbing, electrical systems or components of a similar or comparable nature, and recreational facilities. (Civ. Code § 1134(c).) Failure to make such disclosures prior to the execution of the purchase agreement gives the purchaser the right to terminate the agreement within specified timelines. (Civ. Code § 1134(b).)

Association’s Obligations to Provide Requested Documents
Upon written request from an owner, an association is required to, within ten (10) days of the mailing or delivery of the request, provide the owner (or the owner’s authorized recipient) a copy of all the requested documents specified under Civil Code Section 4525. (Civ. Code § 4530(a)(1).) Those documents include copies of the association’s governing documents, financial statement review, annual budget report, statements regarding rental restrictions, etc. (See Civ. Code § 4525 and 4528.)

The required documents may be maintained in electronic form, and may be posted on the association’s web site. (Civ. Code § 4530(a)(2).) An association is not permitted to withhold delivery of the documents for any reason nor subject to any condition except for the owner’s payment of the fees authorized by Civil Code Section 4530(b) (discussed below). An association may contract with any person or entity to facilitate the production and distribution of the requested documents (i.e., its management company). (Civ. Code § 4530(c); See also Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544.)

Statutory Form: Civil Code § 4528 – The documents required under Civil Code Section 4525 are itemized in the form required under Civil Code Section 4528 (“4528 Form”). The 4528 Form is then completed by the association in order to show what documents are being provided as well as the association’s fees to be charged in providing those documents.

Fees Charged by the Association

  • Allowable Fees – An association is permitted to collect a reasonable fee based upon the association’s actual costs for procuring, preparing, reproducing and delivering the requested documents, but is not permitted to charge additional fees for delivering the documents electronically. (Civ. Code § 4530(b)(1).) The association’s costs may include fees charged by the association’s managing agent for the production of the documents. (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544.)
  • Seller’s Obligation to Pay – The seller is required to compensate the association for providing the requested documents to the prospective purchaser. (Civ. Code § 5300(b)(8).)
  • Estimate Required – A written or electronic estimate of the fees that will be charged by the association must be set forth on the 4528 Form. (Civ. Code § 4530(b)(2).)
  • Fees for Cancelled Request – If the request for documents is cancelled in writing by the same party that placed the order, the association may only charge a cancellation fee if the association had already began working on the request and has not been compensated for the work it already performed. (Civ. Code § 4530(b)(3)(A).) The association is required to refund all previously collected fees reflecting work which has not yet been performed. (Civ. Code § 4530(b)(3)(B)-(C).)
  • Separate from Other Fees, Fines & Assessments – Any fees charged by the association for documents must be distinguished from other fees, fines or assessments billed as part of the property transfer or sales transaction. (Civ. Code § 4530(b)(4).)
  • Documents in Seller’s Possession – If the seller is already in possession of current copies of any of the requested documents, the seller must provide them to the prospective purchaser at no cost. (Civ. Code § 4530(b)(6).)

Violations of Disclosure Requirements
Any person who willfully violates the above requirements is liable to the purchaser of the property for actual damages and is further required to pay a civil penalty in an amount not to exceed five hundred dollars ($500). (Civ. Code § 4540.) In an action to enforce this liability, the prevailing party is entitled to an award of his/her reasonable attorney’s fees. (Civ. Code § 4540.)

Civil Code Section 1134. Disclosure of Defects to Purchaser.

(a) As soon as practicable before transfer of title for the first sale of a unit in a residential condominium, community apartment project, or stock cooperative which was converted from an existing dwelling to a condominium project, community apartment project, or stock cooperative, the owner or subdivider, or agent of the owner or subdivider, shall deliver to a prospective buyer a written statement listing all substantial defects or malfunctions in the major systems in the unit and common areas of the premises, or a written statement disclaiming knowledge of any such substantial defects or malfunctions. The disclaimer may be delivered only after the owner or subdivider has inspected the unit and the common areas and has not discovered a substantial defect or malfunction which a reasonable inspection would have disclosed.

(b) If any disclosure required to be made by this section is delivered after the execution of an agreement to purchase, the buyer shall have three days after delivery in person or five days after delivery by deposit in the mail, to terminate his or her agreement by delivery of written notice of that termination to the owner, subdivider, or agent. Any disclosure delivered after the execution of an agreement to purchase shall contain a statement describing the buyer’s right, method and time to rescind as prescribed by this subdivision.

(c) For the purposes of this section:

(1) “Major systems” includes, but is not limited to, the roof, walls, floors, heating, air conditioning, plumbing, electrical systems or components of a similar or comparable nature, and recreational facilities.

(2) Delivery to a prospective buyer of the written statement required by this section shall be deemed effected when delivered personally or by mail to the prospective buyer or to an agent thereof, or to a spouse unless the agreement provides to the contrary. Delivery shall also be made to additional prospective buyers who have made a request therefor in writing.

(3) “Prospective buyer” includes any person who makes an offer to purchase a unit in the condominium, community apartment project, or stock cooperative.

(d) Any person who willfully fails to carry out the requirements of this section shall be liable in the amount of actual damages suffered by the buyer.

(e) Nothing in this section shall preclude the injured party from pursuing any remedy available under any other provision of law.

(f) No transfer of title to a unit subject to the provisions of this chapter shall be invalid solely because of the failure of any person to comply with the requirements of this section.

(g) The written statement required by this section shall not abridge or limit any other obligation of disclosure created by any other provision of law or which is or may be required to avoid fraud, deceit, or misrepresentation in the transaction.

Rights of Ingress & Egress Over Common Area

Unless otherwise provided in an association’s CC&Rs, the association’s members have legal rights of ingress, egress and support through and over the common areas located in the common interest development (“CID”). (Civ. Code § 4505.) The legal form of these rights (rights vs. easements) differ slightly based upon the category of CID and the ownership structure of the common areas:

Category of CID Ingress, Egress & Support Rights
  • Community Apartment Project
  • Condominium Project
  • Planned Development (with common area owned in common by the owners of the separate interests)
 Appurtenant to each separate interest are nonexclusive rights of ingress, egress, and support, if necessary, through the common area. The common area is subject to these rights. (Civ. Code § 4505(a).)
  • Stock Cooperative
  • Planned Development (with common area owned by the association)
 Appurtenant to each separate interest is an easement for ingress, egress, and support, if necessary, appurtenant to each separate interest. The common area is subject to these easements. (Civ. Code § 4505(b).)

Rights of Access to Separate Interest

An association may not deny a member of the association physical access to the member’s separate interest, either by restricting access through the common area to the separate interest, or by restricting access solely to the separate interest. (Civ. Code § 4510.) The only time when an association may deny access is where such action is otherwise allowed by law, by an order of a court, or by a final decision in a binding arbitration proceeding. (Civ. Code § 4510.)

Access Rights Also Extend to “Occupants”
The access rights provided under Civil Code Section 4510 extend also to “occupants” of a separate interest (i.e., renters) regardless of whether such persons own the separate interest or are otherwise members of the association. (Civ. Code § 4510.)

Exclusive Use Common Area

A subset of common area is “exclusive use common area” (aka “restricted common area”). 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 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.

Impacts of Classification
Whether a particular component is classified as exclusive use common area impacts the maintenance responsibilities for that component, as well as the rights an owner has to construct certain improvements in or upon that component (i.e., EV charging stations, satellite dishes, etc.). (See also “Exclusive Use Common Area Maintenance.”)

Granting Exclusive Use of Common Area
An area which is designated under the CC&Rs as “exclusive use common area” is distinct from a portion of common area which the association or the board has granted to an owner for the owner’s exclusive use. (See “Granting Exclusive Use of Common Area.”)

Transferring Exclusive Use Common Areas
Depending upon the provisions contained within an association’s CC&Rs, an owner may have the authority to transfer an exclusive use common area to another. (Civ. Code § 4645.)

Common Area

An association’s common area is defined under Civil Code Section 4095(a) to mean “the entire common interest development except the separate interests therein.” Because the structure of the separate interests (the real property owned separately by the individual homeowners) depends upon the form of the common interest development (CID), different forms of CIDs will have different scopes and types of common area. The table below illustrates the typical common areas within a condominium project as compared to common areas within a planned development:

Condominium Project Planned Development
In condominium projects, every component of the CID is common area except for the improvements located within the interior, unfinished surfaces of a condominium’s perimeter walls, floors and ceilings. (See “Airspace Condominiums.”) The association’s common areas will often include:

  • The condominium building (the physical structure housing the condominiums), as well as the lot the condominium building sits on
  • Carports and/or parking spaces or lots
  • Electrical systems (except for the outlets located within the interior of a condominium)
  • Elevators
  • Fitness Center
  • Hallways
  • HVAC systems
  • Landscaping
  • Plumbing systems (except for the outlets located within the interior of a condominium)
  • Roofs & Windows
  • Stairways
  • Swimming pools
  • Utility lines/components that service the common areas
 In planned developments (or “PUDs”), owners typically own their houses as well as the lots or parcels upon which their houses are placed. The association’s common areas will often include:

  • Clubhouses
  • Equestrian facilities
  • Entrance/Exit gates
  • Fencing/Walls around the perimeter of the development
  • Golf course
  • Greenbelts
  • Hiking trails
  • Lakes
  • Sidewalks
  • Streets within the development that are not public streets
  • Swimming pools
  • Tennis courts
  • Utility lines/components that service the common areas

Impact on Maintenance Responsibilities
Whether a particular area or component is “common area” impacts the extent of the association’s responsibilities to maintain, repair and replace that area or component. (See “Maintenance Responsibilities (Generally)” and “Common Area Maintenance.”)

Exclusive Use Common Area
A subset of common area is “exclusive use common area”—a portion of common area designated under the association’s CC&Rs for the exclusive use of a particular owner. (Civ. Code § 4145; See also “Exclusive Use Common Area.”) Exclusive use common areas are more prevalent in condominium projects where the owner of an airspace condominium unit is given the exclusive use of a patio, balcony, deck, etc. that is located outside the boundaries of the owner’s unit. Whether an area or component is classified as exclusive use common area also impacts the extent of the association’s responsibilities to maintain, repair, and replace that area or component. (See “Exclusive Use Common Area Maintenance.”)

Granting Exclusive Use of Common Area
Subject to certain limited exceptions, an association’s board of directors may not legally grant an owner the exclusive use of any portion of common area without approval of the association’s membership. (See “Granting Exclusive Use of Common Area.”)

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.”)
  • Install/Use a Solar Energy System – no membership approval is required when the grant is being used to allow the installation and use of a solar energy system on the common area roof of a residence that meets the requirements of Sections 714, 714.1, and, if applicable, Section 4746. (Civ. Code § 4600(b)(3)(J); See also “Solar Panels and Solar Energy Systems.”)
  • Comply with Governing Law – no membership approval is required when the grant is needed to “comply with governing law.” (Civ. Code § 4600(b)(3)(K).)

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.”)

AB 2188. Solar Energy Systems.

Increased protections for homeowners seeking to install solar energy systems (i.e., solar panels) on their properties. Limits HOA regulatory authority.

Current Status: Chaptered

FindHOALaw Quick Summary:

The California Solar Rights Act found at Civil Code Sections 714 and 714.1 provides certain protections for owners seeking to install solar energy systems (i.e., solar panels) on their properties. Current law permits HOAs to impose “reasonable restrictions” on the installation of solar energy systems. In sum, AB 2188 (Muratsuchi) will serve to reduce the extent of a HOA’s architectural control authority in this respect by invalidating any HOA restrictions on solar energy systems that serve to reduce a proposed system’s performance by more than 10% or increase its costs by more that $1,000.

*UPDATE: AB 2188 was approved on September 21, 2014 and its changes to the law went into effect on January 1, 2015. 

View more info on AB 2188
from the California Legislature's website

Related Links

AB 2188 Signed: Reducing HOA Authority to Restrict Solar Energy Systems - Published on HOA Lawyer Blog (December 17, 2014).