The Misunderstood “Community Exclusive Use Area” – Orange County Register

The typical condominium project consists of three ownership categories: the ‘separate interest’ (usually referred to as the ‘unit’), the ‘common area’, and a subset of the common area referred to as the ‘exclusive use common area’.

Misunderstandings about exclusive usage areas lead to many avoidable disagreements. Simply put, Exclusive Use Areas are not “your” property, but a portion of the common area designated for a Member’s use.

The unit is usually defined in the notes section of the condominium plan, an important but often overlooked document.

While some developers have gotten more creative, the typical condo configuration is an air space surrounded by the unfinished surfaces of walls, ceilings, and floors. Everything else is “common area”.

However, there are many areas that are common areas but are clearly intended for the use and enjoyment of a single owner and these areas are referred to as “exclusive use common areas”.

Exclusive use common areas are sometimes defined in the condominium plan or CC&Rs, but Civil Code 4145 provides a standard definition when the governing documents do not fully cover the subject, including: “shutters, awnings, flower boxes, doorsteps, porches, porches, balconies, patios, Exterior doors, door frames and fittings… Screens and windows or other furnishings designed to serve a single separate interest but are outside the confines of the separate interest…”

Fixtures that serve a single unit but exist outside the unit boundaries may include, for example, water heaters or air conditioners.

Many condominiums are bought with the mistaken belief that the exclusive use area, e.g. a balcony or terrace, belongs to “their” and therefore the HOA has no say in it. Unfortunately, members often think that their control of the area is also exclusive because their use is exclusive, and therefore the HOA has no say. This can lead to enforcement situations and disputes, as associations can control the use of exclusive use areas and typically have different rules governing their use.

Who maintains exclusive use of the common area? Who fixes it? Is the broken window or leaking water heater a dressing problem?

The investigation usually starts with a review of the relevant documents related to the area in question to determine if it is a single use common area, followed by an analysis of who is maintaining it and who is repairing it – and the two responsibilities may become not assigned to the same party.

If the relevant documents don’t answer the question, the Davis-Stirling Act fills in the gaps. Pursuant to Section 4775 of the Civil Code, the association will repair, replace and maintain the common area and repair and replace the exclusive use common area and the member will maintain the exclusive use common area, unless the CC&Rs indicate otherwise.

Note that only association CC&Rs can assign repair and maintenance responsibilities other than Civil Code 4775 – HOAs cannot do this in rules. Therefore, many association rules currently in force may be invalid to the extent that they purport to assign such responsibility.

Exclusive use areas are often misunderstood as belonging to the apartment owner, but such areas are still part of the common area and are therefore shared with all other owners and under the control of the association.

“Use” is distinct from “control” and responsibility for maintenance may be assigned differently than responsibility for repair. Exclusive use is a necessary complication of shared ownership, and better understanding will increase enjoyment and reduce conflict.

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Director of Richardson|Ober LLP, a California law firm known for advising community associations. Send column questions to The Misunderstood “Community Exclusive Use Area” – Orange County Register

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