If the association is served with a claim of lien pursuant to Part 6 (commencing with Section 8000) for a work of improvement on a common area, the association shall, within 60 days of service, give individual notice to the members, pursuant to Section 4040.
Related Links
AB 534 Signed: Associations to Provide Notice to Members of Lien Claims – Published on HOA Lawyer Blog (July 10, 2017)
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 |
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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).) |
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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).) |
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:
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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:
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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.”)
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.)
Condominium Plan
The Condominium Plan is filed by the “Declarant” (typically the CID’s developer) prior to the construction of a condominium project. The Condominium Plan shows the engineering specifications of the CID and contains descriptions and diagrams identifying the boundaries of the separate interests (the condominium “units”), the common areas, and exclusive use common areas (i.e., parking spaces and balconies). (Civ. Code § 4120, Civ. Code § 4285.) By contrast, Planned Unit Developments (“PUDs”) use a “Tract Map” to illustrate the boundaries of the various lots and common areas.
Addressing Maintenance Questions
The boundaries illustrated in the Condominium Plan may help clarify the members’ respective maintenance responsibilities versus those of the association where the maintenance responsibilities under the CC&Rs may be ambiguous.
Government Code Section 66452.10. Conversion to Condominium Project.
A stock cooperative, as defined in Section 11003.2 of the Business and Professions Code, or a community apartment project, as defined in Section 11004 of the Business and Professions Code, shall not be converted to a condominium, as defined in Section 783 of the Civil Code, unless the required number of (1) owners and (2) trustees or beneficiaries of each recorded deed of trust and mortgagees of each recorded mortgage in the cooperative or project, as specified in the bylaws, or other organizational documents, have voted in favor of the conversion. If the bylaws or other organizational documents do not expressly specify the number of votes required to approve the conversion, a majority vote of the (1) owners and (2) trustees or beneficiaries of each recorded deed of trust and mortgagees of each recorded mortgage in the cooperative or project shall be required. Upon approval of the conversion as set forth above and in compliance with Sections 4290 and 4295 or Sections 6626 and 6628 of the Civil Code, all conveyances and other documents necessary to effectuate the conversion shall be executed by the required number of owners in the cooperative or project as specified in the bylaws or other organizational documents. If the bylaws or other organizational documents do not expressly specify the number of owners necessary to execute the conveyances or other documents, a majority of owners in the cooperative or project shall be required to execute the conveyances and other documents. Conveyances and other documents executed under the foregoing provisions shall be binding upon and affect the interests of all parties in the cooperative or project. The provisions of Section 66499.31 shall not apply to a violation of this section.
Civil Code Section 4630. Transfer of Interest in Condominium Project.
In a condominium project the common area is not subject to partition, except as provided in Section 4610. Any conveyance, judicial sale, or other voluntary or involuntary transfer of the separate interest includes the undivided interest in the common area. Any conveyance, judicial sale, or other voluntary or involuntary transfer of the owner’s entire estate also includes the owner’s membership interest in the association.