Would make an association responsible for any repairs and replacements relating to the interruption of gas, heat, water, or electrical services that begin in the common area, even if the matter extends into another area, and would require the association to complete those repairs within 30 days.
Current Status: Chaptered
FindHOALaw Quick Summary:
Existing law, unless otherwise provided in the declaration of a common interest development, generally makes an association responsible for repairing, replacing, and maintaining the common area, except as specified.
This bill would amend Civil Code Section 4775 to make an association responsible for repairs and replacements for matters pertaining to the interruption of gas, heat, water, or electrical services that begin in the common area even if the matter extends into another area. The bill would require an association to complete those repairs or replacements within 30 days. The bill would require an award of reasonable attorney’s fees to a prevailing owner who enforces this provision against an association.
Existing law imposes specified duties on an association with respect to managing a common interest development, including levying regular and special assessments sufficient to perform its obligations. Existing law imposes limits on increases in those assessments, except those increases necessary for specified emergency situations, including an extraordinary expense necessary to repair or maintain the common interest development for which the association is responsible where a threat to personal safety on the property is discovered.
This bill would amend Civil Code Section 5610 to expand that emergency situation to include an extraordinary expense necessary to operate, repair or maintain the common interest development for which the association is responsible where a threat to personal health or safety or another hazardous condition or circumstance on the property is discovered.
**SB 900 was signed by the Governor on September 19, 2024, and takes effect January 1, 2025.
(a) It is the intent of the Legislature to ensure that members and residents of common interest developments have the ability to exercise their rights under law to peacefully assemble and freely communicate with one another and with others with respect to common interest development living or for social, political, or educational purposes.
(b) The governing documents, including bylaws and operating rules, shall not prohibit a member or resident of a common interest development from doing any of the following:
(1) Peacefully assembling or meeting with members, residents, and their invitees or guests during reasonable hours and in a reasonable manner for purposes relating to common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes.
(2) Inviting public officials, candidates for public office, or representatives of homeowner organizations to meet with members, residents, and their invitees or guests and speak on matters of public interest.
(3) Using the common area, including the community or recreation hall or clubhouse, or, with the consent of the member, the area of a separate interest, for an assembly or meeting described in paragraph (1) or (2) when that facility or separate interest is not otherwise in use.
(4) Canvassing and petitioning the members, the association board, and residents for the activities described in paragraphs (1) and (2) at reasonable hours and in a reasonable manner.
(5) Distributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner.
(6)
(A) Using social media or other online resources to discuss any of the following, even if the content is critical of the association or its governance:
(i) Development living.
(ii) Association elections.
(iii) Legislation.
(iv) Election to public office.
(v) The initiative, referendum, or recall processes.
(vi) Any other issues of concern to members and residents.
(B) This paragraph does not require an association to provide social media or other online resources to members.
(C) This paragraph does not require an association to allow members to post content on the association’s internet website.
(c) A member or resident of a common interest development shall not be required to pay a fee, make a deposit, obtain liability insurance, or pay the premium or deductible on the association’s insurance policy, in order to use a common area for the activities described in paragraphs (1), (2), and (3) of subdivision (b).
(d) A member or resident of a common interest development who is prevented by the association or its agents from engaging in any of the activities described in this section may bring a civil or small claims court action to enjoin the enforcement of a governing document, including a bylaw and operating rule, that violates this section. The court may assess a civil penalty of not more than five hundred dollars ($500) for each violation.
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.)
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.
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.)
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.”)
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.”)
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.”)
Any restrictions upon the severability of the component interests in real property which are contained in the declaration shall not be deemed conditions repugnant to the interest created within the meaning of Section 711. However, these restrictions shall not extend beyond the period in which the right to partition a project is suspended under Section 4610.
(a) Unless the governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board may grant exclusive use of any portion of the common area to a member.
(b) Subdivision (a) does not apply to the following actions:
(1) A reconveyance of 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.
(2) Any grant of exclusive use 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 or in accordance with the governing documents approved by the Real Estate Commissioner.
(3) Any grant of exclusive use that is for any of the following reasons:
(A) To eliminate or correct engineering errors in documents recorded with the county recorder or on file with a public agency or utility company.
(B) To eliminate or correct encroachments due to errors in construction of any improvements.
(C) 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.
(D) To fulfill the requirement of a public agency.
(E) To transfer the burden of management and maintenance of any common area that is generally inaccessible and not of general use to the membership at large of the association.
(F) To accommodate a disability.
(G) To assign a parking space, storage unit, or other amenity, that is designated in the declaration for assignment, but is not assigned by the declaration to a specific separate interest.
(H) To install and use an electric vehicle charging station in an owner’s garage or a designated parking space that meets the requirements of Section 4745, where the installation or use of the charging station requires reasonable access through, or across, the common area for utility lines or meters.
(I) To install and use an electric vehicle charging station through a license granted by an association under Section 4745.
(J) To install and use 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.
(K) To comply with governing law.
(c) Any measure placed before the members requesting that the board grant exclusive use of any portion of the common area shall specify whether the association will receive any monetary consideration for the grant and whether the association or the transferee will be responsible for providing any insurance coverage for exclusive use of the common area.
Except as otherwise provided in law, an order of the court, or an order pursuant to a final and binding arbitration decision, an association may not deny a member or occupant physical access to the member’s or occupant’s separate interest, either by restricting access through the common area to the separate interest, or by restricting access solely to the separate interest.
