GRANTING EXCLUSIVE USE TO

PORTIONS OF THE COMMON AREA

By   Adrian J. Adams, Esq., Adams AuCoin & Kessler LLP

Over the years, some boards have treated common areas fairly casually. Starting

January 1 of this year, the practice of giving individual owners exclusive use of common areas was significantly restricted by a new provision in the Davis-Stirling Act, Civ. §1363.07. Following is a summary of the provision.

Membership Approval. Unless an association's governing documents provide otherwise, giving an owner exclusive use of any portion of the common areas requires the approval of 67% of the membership. 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.

Board 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 under the following conditions:

- reconveyance of common area or granting exclusive use to the subdivider to enable the   continuation of development that is in substantial conformance with plans of phased development submitted to Department of Real Estate;

- to eliminate or correct engineering errors in recorded documents or documents on file with a public agency or utility company;

- to eliminate or correct encroachments due to errors in construction;

- to permit changes in the plan of development submitted to the Commissioner of the Department of Real Estate 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 is not of general use to the membership at large;

- any grant in connection with an expressly zoned industrial or commercial development, or any grant within a subdivision of the type defined in Civ. §1373

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.

Adrian J. Adams, Esq., is a Managing Partner of the law firm of Adams & Kessler LLP