An "easement" is a right to cross or otherwise use someone else's land for a specified purpose. General easements are often found in CC&Rs giving members the right to use roads in a development or to access lots for the purpose of running utilities.
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).)
Violations. If the board grants exclusive use without membership approval (and none of the exceptions apply), owners may bring an action in court to reverse the approval. Owners have one year to bring any such action. (Civ. Code §4605(a).) If the owner is successful, penalties and attorneys' fees may be awarded against the association. (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 an exclusive easement without membership approval for reasons described in Civil Code §4600(b).
- 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.
- 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.
- To eliminate or correct engineering errors in documents recorded with the county recorder or on file with a public agency or utility company.
- To eliminate or correct encroachments due to errors in construction of any improvements.
- 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.
- To fulfill the requirement of a public agency.
- 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.
- To accommodate a disability.
- 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.
- 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.
- To install and use an electric vehicle charging station through a license granted by an association under Section 4745.
- 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.)
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