Granting Exclusive Use to a portion of the Common Area – Membership Approval and Exceptions

It is very common for Association members to request that they be granted exclusive use of a portion of the association’s common areas. This can come in a multitude of forms: Requests to expand a patio, requests to maintain a common area slope adjacent to their residence, requests to add a window to a common area condominium wall, etc.

The general rule is that in order for the association board to do so, the association must seek and obtain the approval of 67 percent of the Association’s membership (Civil Code 4600(a))!  This is the same criteria as many CC&R amendments and can be VERY difficult and expensive to obtain.

However, there are thirteen statutory exceptions to the membership approval requirement (Civil Code 4600(b).  The most commonly used exceptions are those that provide that the Board can grant such exclusive use (without membership approval):

1. To transfer the burden if management and maintenance of common area that is generally inaccessible and not of general use to the membership at large,
2. To install and use an electric vehicle charging station or solar energy system; and,
3. To accommodate the disability of a resident (for example a wheelchair ramp from their door into the common area).

If the Board intends to rely upon an exception, it is important that it generates the proper documentation to defend its decision, and in certain cases where it is permissible.  Further it is important that when it is permissible (it is not permissible with all of the exceptions),  to require appropriate agreements with the benefitting owner (which are often recorded into the chain of title of the benefitting owners unit/lot), to best protect the association and its board of directors.

The requirements and exceptions are paraphrased above. To see the full details/requirements as established by the Davis-Stirling Common Interest Development Act, download the following document from our resource center.