Separate Interest. When someone buys a condominium, they buy a cube of air bounded by the unfinished surfaces of the perimeter walls, ceilings and floors. All improvements contained in that cube of air, such as carpets, cabinets, light fixtures, plumbing fixtures, etc., are part of the real property defined as the owner's "separate interest."

Exclusive Use Common Area. Exclusive use common areas, sometimes referred to as restricted common areas, are defined as those areas outside the owner's separate interest which are for the exclusive use of that owner.

1. CC&Rs. Newer CC&Rs specify areas for owners' exclusive use such as balconies, patios, storage areas, parking spaces, plumbing, electrical, etc. Older documents (pre-1985) normally do not use the term. Sometimes, even when the term is used, maintenance responsibilities are unclear.

2. Condominium Plan. The association's condominium plan typically designates areas, such as balconies and parking spaces, set aside for an owner's exclusive use.

3. Davis-Stirling Act. The Davis-Stirling Act contains a default definition of exclusive use common areas if none is found in the CC&Rs or condominium plan. Civil Code §1351(i) defines the following as exclusive use common areas:

• shutters, awnings, window boxes,
• doorsteps, stoops, porches,
• balconies and patios,
• exterior doors, door frames, and hardware,
• screens and windows,
• fixtures designed to serve a single interest but existing outside the boundaries of the separate interest.

Granting Exclusive Use. Unless already granted in the governing documents, boards cannot give an owner exclusive use of the common areas. Such grants require membership approval.

RECOMMENDATION: Older CC&Rs frequently fail to properly address the maintenance responsibilities of exclusive use common areas. This deficiency can be cured by amending or restating the CC&Rs.