R.K. from Orange County, California writes:
Dear Mister Condo,
My HOA Board is granting common area to residents for their A/C condensers. My CC&R’s do not have a provision to grant common area or easements to members. The Board’s response is that they are granting the common area under Davis Stirling Civil Code 4600, which requires a vote of at least 67% of the membership to grant common area. But the board has bypassed the membership vote by stating the common area is granted under exception (b)(3)(e) — which I believe is WRONG! My question is: My CC&R’s state that a change to the Condo Map or Condo Plan requires 100% vote of the membership & lenders. Since my board has granted common area to residents for their a/c condensers wouldn’t the association be required to now change the Condo Map? When they give away this common area for a/c condensers they are filing an Indemnity Agreement with the County stating that the owner & any successor is forever responsible for the common area. The indemnity states the owner is required to carry insurance on the portion of the common area but the Association is not enforcing the insurance. This seems so wrong!
Mister Condo replies:
R.K., while I am familiar with the Davis Sterling Act and its governance guidelines for condos and HOAs in California, I am not an attorney and offer no legal advice in this column. Your Board has clearly meandered into murky legal issues here and should be consulting with their own attorney before decreeing that they have interpreted the law in such a way that they feel they can grant the use of this common area to owners without going through the proper channels. Further, to claim the association is not going to enforce unit owners to insure the property that the unit owners own and maintain seems to fly in the face of regulation. That being said, you may wish to hire your own attorney to protect your own rights. At the very least, I think you should speak to a locally qualified community association attorney who could give you the proper legal advice. In addition to Sterling Davis, your own bylaws and rules may supersede the requirements as set out by law. Typically, association governance documents can be stricter than Sterling Davis but Sterling Davis clearly outlines minimum requirements and is particularly useful if the governing documents are silent on an issue. In this case, Davis Sterling says: “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.” You are taking issue with the Board over the grant of the land for individual owner use. Your burden would be to prove that land granted is of use to the membership at large of the association. If that can’t be proved, your Board may be well within their rights to grant the land to the unit owners. All the best!