EXCLUSIVE USE COMMON AREA

Common Area vs. Separate Interests 

When someone buys a condominium, their "real property" is typically defined as a cube of air bounded by the unfinished surfaces of the perimeter walls, ceilings and floors. All improvements contained in that space, such as carpets, cabinets, light fixtures, plumbing fixtures, etc., are part of the real property defined as the owner's "separate interest" because it is separate from real property that is owned in common with other members of the association, i.e., common areas.

Common area is defined as "the entire common interest development, except the separate interest therein." (Civ. Code § 4095(a); Pinnacle Museum Tower v. Pinnacle Market Dev'l.)  It means that everything in a condominium development is either a separate interest or common area.

Exclusive Use Common Area Defined

Exclusive use common area (EUCA), sometimes referred to as "restricted common area" or "limited common element," is a subset of common area. “Exclusive use common area means a portion of the common area . . .”  (Civ. Code § 4145(a).) EUCAs are those common 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 § 4145 defines the following as exclusive use common areas:

• shutters, awnings, window boxes
• doorsteps [a step or series of steps leading to the outer door of a house], stoops [a porch with stairs], porches [a covered area extending from a door]
• 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
• telephone wiring

Granting Homeowners Exclusive Use of Common Area

Membership Approval. Unless the association's governing documents specify a different percentage, giving an owner exclusive use of any portion of the common areas requires the approval of 67% of the membership. (Civ. Code § 4600(a).) When presenting it for a vote, the board must specify (i) whether the association will receive any monetary consideration for the grant and (ii) whether the association or the transferee will be responsible for providing any insurance coverage for exclusive use of the common area. (Civ. Code § 4600(c).)

Owner Statute of Limitations. If a board grants exclusive use of the common areas to an individual without membership approval (and none of the exceptions apply), owners can bring an action in court to reverse the approval. Owners have one year from the date the cause of action accrues to file a complaint. (Civ. Code § 4605(a).) If the owner is successful, penalties and attorneys' fees may be awarded against the association. If, however, the association is the prevailing party, it cannot recover any costs, unless the court finds the action to be frivolous, unreasonable, or without foundation. (Civ. Code § 4605(b).)

Exceptions to Membership Approval. There are limited exceptions to the above requirement. Unless the governing documents provide otherwise, the board may grant exclusive use to a portion of the common area without membership approval for reasons described in Civil Code § 4600(b).

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. To eliminate or correct engineering errors in documents recorded with the county recorder or on file with a public agency or utility company.
4. To eliminate or correct encroachments due to errors in the construction of any improvements.
5. 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.
6. To fulfill the requirement of a public agency.
7. 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.
8. To accommodate a disability.
9. 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.
10. 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.
11. To install and use an electric vehicle charging station through a license granted by an association under Section 4745.
12. To comply with governing law.

Procedure for Board Approval. Any request for exclusive use of any portion of the common areas should be listed in the board's posted open meeting agenda so the membership is on notice of the request. Any discussion and vote by the board should be done in an open meeting. Before granting any approvals, the board should make a finding, which is recorded in the minutes of the meeting, that one of the above exceptions applies and what facts support the finding.

Maintenance Issues. If the board or membership votes to allow an owner to have exclusive use of a portion of the common area, the approval should be conditional on the owner signing a recordable agreement obligating the owner to insure and maintain the property. This will put all future owners on notice of their obligation. The board should also consider putting an indemnity provision in the agreement.

CC&R Easement. If the CC&Rs provide for an exclusive easement for a private roadway for one owner to cross over the lot of a neighboring owner to reach his landlocked unit, the easement is enforceable. (Gray v. McCormick.)

Maintenance Responsibilities

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 and by creating a maintenance chart.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.