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...

This week, I communicated with a community association board that is ready to impose an emergency assessment upon their membership.

We discussed the fact that imposing emergency assessments is very easy! All you need to do is have your board approve the emergency assessment and properly notice it to the association membership. It’s all very enticing since, no matter what amount, it does not require membership approval!

BUT… while IMPOSING it is easy, defending it (legally AND politically) can be very challenging! The simple fact is that emergency assessments carry a high probability of legal challenge (usually, when the association attempts to legally enforce it against a member that refuses or is unable to pay it) and carry a high probability of political upheaval within the community (think board removal petitions, hate mail, and “spirited” discourse at the next few board meetings).

Consequently, the imposition of an emergency assessment should not be...