Category Archives: Topic Index

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.”)

Airspace Condominium Units

Included within the various forms of common interest developments (“CIDS”) are condominium projects. (Civ. Code § 4100.) The portion of real property within a condominium project that is owned individually by a property owner is the owner’s “separate interest” (or unit). (Civ. Code §§ 4185(a)(2), 4125(b).) The majority of condominium units within California condominium projects are structured as “airspace” condominium units.

Boundaries
The boundaries of an airspace condominium unit typically include the interior, unfinished surfaces of the unit’s perimeter walls, floors, ceilings, windows and doors. These boundaries are often identified within the provisions of the CID’s condominium plan and may also be stated in the association’s CC&Rs. Where such provisions are absent or ambiguous, Civil Code Section 4185(b) establishes this default boundary structure:

“Unless the declaration or condominium plan, if any exists, otherwise provides, if walls, floors, or ceilings are designated as boundaries of a separate interest, the interior surfaces of the perimeter walls, floors, ceilings, windows, doors and outlets located within the separate interest are part of the separate interest…” (Civ. Code § 4185(b).)

The property owned by an owner (the owner’s separate interest) consists of the block of airspace created by the interior, unfinished surfaces of the unit’s perimeter walls, floors and ceilings. Using this structure, the owner would own the paint on the walls and ceilings, and any finishes placed on the floor (i.e., tile, hardwood, carpet, etc.), as well as the block or “cube” of airspace located within those boundaries and any improvements located within that airspace (i.e., cabinetry, appliances, plumbing fixtures, etc.). However, everything existing beyond those boundaries (i.e., the physical drywall, subfloor, unit foundation, roof, etc.) would generally constitute common area. The boundaries of an airspace condominium unit are significant in determining the scope of an owner’s maintenance and repair responsibilities versus those of the association. (See “Common Area Maintenance.”)

Exclusive Use Common Areas
The owner of an airspace condominium unit often also has certain portions of association common area designated for the owner’s exclusive use (i.e., patios, balconies, decks, etc.). These “exclusive use common areas” are not owned by the owner in his/her individual capacity; they are a portion of common area reserved for the owner’s exclusive use via the provisions of the association’s CC&Rs. This distinction is significant because it impacts the scope of the owner’s maintenance and repair responsibilities versus those of the association. (See “Exclusive Use Common Area Maintenance.”)

Separate Interests

The real property within a common interest development (“CID”) that is owned exclusively by an owner is referred to as the owner’s “separate interest.” The types of separate interests within a CID are based upon the form of the CID itself:

Community Apartment Project – An owner’s separate interest includes an exclusive right to occupy an apartment. (Civ. Code § 4185(a)(1).)
Condominium Projects – An owner’s separate interest most often includes a cube of airspace bounded by the interior unfinished surfaces of a condominium unit’s perimeter walls, floors, and ceilings. (Civ. Code §§ 4185(a)(2), 4125; See also “Airspace Condominium Units.”) The boundaries of the condominium units, common areas, and exclusive use common areas within a condominium project are contained in a recorded condominium plan. (Civ. Code § 4125.)
Planned Developments (“PUDs”) – An owner’s separate interest includes an individually owned lot (or parcel), as well as the residential structures and other improvements located on the lot. (Civ. Code § 4185(a)(3).) The boundaries of the various lots and common areas within a planned development are contained in a recorded tract or subdivision map.
Stock Cooperatives – An owner’s separate interest is an exclusive right to occupy a portion of the CID which is owned entirely by a corporation, and where the owner is a shareholder within that corporation. (Civ. Code §§ 4185(a)(4), 4190(a).)

Compared to Common Area & Exclusive Use Common Area

Common Area – Every portion of a CID except for the separate interests constitutes “common area” that the association is generally obligated to maintain and repair. (Civ. Code §§ 4095(a), 4775(a).)

Exclusive Use Common Area – An owner within a CID may also have a portion of common area designated for the owner’s exclusive use—defined as “exclusive use common area.” (Civ. Code § 4145(a); See also “Exclusive Use Common Area.”) Exclusive use common areas are commonly utilized in condominium projects (i.e., patios, balconies, decks, etc. that are located immediately adjacent to an owner’s condominium unit). An owner does not own exclusive use common area; it is a portion of common area reserved for the owner’s exclusive use via the terms of the association’s CC&Rs. This distinction impacts the scope of the owner’s maintenance and repair responsibilities versus those of the association. (See “Exclusive Use Common Area Maintenance.”)

Common Interest Developments (“CIDs”)

A common interest development (“CID”) is a real property development where property owners share a common set of financial obligations, property and easement rights established in a set of recorded restrictions (commonly referred to as “CC&Rs”). Those restrictions require property owners within CIDs to “give up a certain degree of freedom of choice which [they] might otherwise enjoy in separate, privately owned property.” (Nahrstedt v. Lakeside Village Condo. Owners Assn. (1994) 8 Cal.4th 361, 374.) However, recorded restrictions are recognized as “an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement.” (Nahrstedt, at 372.)

Defined Under the Davis-Stirling Act
The Davis-Stirling Act at Civil Code § 4100 defines a CID to include any one of the following:

Community Apartment Project – this CID provides each property owner with an undivided ownership interest in the entire project as well as an exclusive right to lease an apartment within the project. (Civ. Code § 4105.)
Condominium Project – this CID provides each property owner with an undivided ownership of a portion of the project together with an individual ownership interest in a separate interest in space called a condominium (or “condominium unit”). (Civ. Code § 4125.) The condominiums within condominium projects are typically structured as “airspace condominium units.”
Planned Development – this CID is commonly utilized for single-family home communities. A planned development (or “PUD”) has either or both of the following: (a) common area that is owned by the association or by the property owners in common, and/or (b) common area and an association that maintains the common area with the power to levy and collect assessments. (Civ. Code § 4175.)
Stock Cooperative – this CID in which a corporation is formed for the purpose of owning the development. The property owners are “shareholders” of that corporation and receive a right of exclusive occupancy in a portion of the development (a unit). (Civ. Code § 4190.)

CIDs may be developed and structured in numerous ways based upon the desired use and ownership composition of the CID (i.e., senior communities, highrises, lake developments, commercial developments, mixed-use developments, golf course developments, equestrian developments, etc.

Retroactive Application of Davis-Stirling Act
The Davis-Stirling Act applies to CIDs that were established prior to its enactment. (Villa De Las Palmas HOA v. Terifaj (2004) 33 Cal.4th 73, 95, FN.2.)

Must be Managed by Association
Maintenance of a CID’s common areas, as well as enforcement of its use restrictions, are actions fulfilled by the association (aka “HOA”, “owner’s association,” or “community association”) formed to manage the CID. CIDs are legally required to be managed by an association, and the association may be incorporated or unincorporated. (Civ. Code § 4800.)

Capital Improvements

A capital improvement for a community association is generally understood to include any of the following:

A substantial and discretionary addition to the association’s common area; or
A substantial and discretionary upgrade to the association’s common area components or materials.

Authority to Construct Capital Improvements
There are no laws prohibiting an association from using its funds to construct capital improvements, nor are there any laws requiring the board of directors to obtain the membership’s authorization to construct capital improvements. However, such requirements are commonly contained within the provisions of an association’s governing documents (typically within its CC&Rs). Even where such provisions are absent, the board will likely need to obtain membership approval to generate the funds needed to construct the capital improvement (i.e., to levy a special assessment greater than five percent (5%) of the association’s annual budget). (Civ. Code § 5605(b); See also “Limitations on Assessment Increases.”)

Occupancy Restrictions

Overcrowding within residential community associations may result in various problems and nuisance issues that adversely affect the quiet enjoyment of the association’s residents. Associations do have some authority to impose reasonable, non-discriminatory restrictions on the occupancy of condominium units:

“The authority of a condominium association necessarily includes the power to issue reasonable regulations governing an owner’s use of his unit in order to prevent activities which might prove annoying to the general residents…Therefore, a reasonable restriction upon the occupancy of individually owned units of a condominium project is not beyond the scope of authority of the owner’s association.” (Ritchey v. Villa Nueva Condo. Assn. (1978) 81 Cal.App.3d 688, 698-699.)

Discriminatory Age-Based Restrictions
Federal and state statutes prohibit residential restrictions that discriminate on basis of race, religion, natural original, sex, ancestry, familial status, or disability. With the exception of senior communities, occupancy restrictions may not be used to discriminate against families with children, nor may they be used to limit residency to persons over a certain age. (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790.) However, the Department of Housing and Urban Development (HUD) has stated that:

“…in appropriate circumstances, owners and managers may develop and implement reasonable occupancy requirements based on factors such as the number and size of sleeping areas or bedrooms and the overall size of the dwelling unit. In this regard, it must be noted that, in connection with a complaint alleging discrimination on the basis of familial status, [HUD] will carefully examine any such nongovernmental restriction to determine whether it unreasonably operates to limit or exclude families with children.” (HUD – Occupancy Standards Statement of Policy.)

Occupancy Formulas
The California Health & Safety Code and the Federal Uniform Housing Code both contain provisions that restrict the number of persons residing within a unit by utilizing formulas based upon the square footage of bedroom sizes. Various cities and counties within California have issued their own occupancy standards/formulas. Additionally, the California Department of Fair Employment and Housing (DFEH) uses what is known as the “two plus one” formula, which permits two (2) people to occupy each bedroom, with one (1) additional person in the living spaces (i.e., five (5) people may reside in a two bedroom unit). The DFEH formula has not gained formal legal status at either the state or federal level.