What is a Common Area in a Homeowners Association

Although there has been a re-write and the statute sections have changed. The definition of a "common area' as contained in California Civil Code §4095 is defined as;

(a) "Common area" means the entire common interest development except the separate interests therein. The estate in the common area may be a fee, a life estate, an estate for years, or any combination of the foregoing.
(b) Notwithstanding subdivision (a), in a planned development described in subdivision (b) of Section 4175, the common area may consist of mutual or reciprocal easement rights appurtenant to the separate interests.

Heirarchy of Documents in a HOA Community

Many People ask the question as to what is controlling in a Homeowners association? Is it California law or is it the governing documents, homeowners association bylaws...? Actually there is a California Civil Code that addresses this very issue. Under California Civil Code section 4205 of the Davis-Stirling Act the section goes on to describe the conflicting document hierarchy. I have inlcuded the entire portion of Civil Code 4205 for the readers reference.

California Civil Code Section 4205

4205.  (a) To the extent of any conflict between the governing
documents and the law, the law shall prevail.
   (b) To the extent of any conflict between the articles of
incorporation and the declaration, the declaration shall prevail.
   (c) To the extent of any conflict between the bylaws and the
articles of incorporation or declaration, the articles of
incorporation or declaration shall prevail.
   (d) To the extent of any conflict between the operating rules and
the bylaws, articles of incorporation, or declaration, the bylaws,
articles of incorporation, or declaration shall prevail.

How Does the Davis Stirling Act Apply to Common Interest Developments

California Civil Code § 4200 states the following;

4200.  This act applies and a common interest development is created whenever a separate interest coupled with an interest in the common area or membership in the association is, or has been, conveyed, provided all of the following are recorded:

(a) A declaration.

(b) A condominium plan, if any exists.

(c) A final map or parcel map, if Division 2 (commencing with Section 66410) of Title 7 of the Government Code requires the recording of either a final map or parcel map for the common interest development.

Election Ballots..Are They Revocable?

I have received the following question several times lately and thought that I would post the question and the answer; " When does a secret ballot become irrevocable?" I have received this question from both HOA Board members and community owners presumably because they have voted and have later changed their mind.

The answer is contained in Civil Code Section 1363.03 (f), which states "Once a secret ballot is received by the inspector of elections, it shall be irrevocable."

Homeowners Association (HOA) Attorney
Note: The information contained is not legal advice and does not establish an attorney-client relationship. Contact us via email Ryan.McClure.Esq@gmail.com, website: http://www.rpmcclurelaw.com/, or call us at 951.818.0687

HOA Rentals

Many HOA communities have detailed rental restrictions contained within their governing documents. A community can restrict the number or units or the percentage of units rented at any given time.

The basis for this restriction lies in the preservation of the community. It is thought that by limiting the number of units that were rented at any given time would preserve the aesthetic features of the community and therefore promote and preserve the value of the community.

Whether this holds true or not more than likely depends on the community.

Rental issues within a HOA come up in two very distinct ways. First, I receive numerous phone calls from both Board members and community members asking whether they are enforcing the rental restrictions in accordance with the governing documents correctly. Of course, I get the same number of calls from absent owners that wish to rent out their unoccupied condo and are receiving resistance from the HOA Board. Generally, a reasonable restriction on the number or percentage of units that can be rented at any given time will be enforceable. However, out right bans against "any" renting would more than likely be a unreasonable restriction and probably would not be upheld by a court hearing the matter.

The second area where rentals comes up is with the lending industry. Most lenders ask what number of units or what percentage of units are rentals before making any lending commitments within a specific community. This kind of scrutiny can be detrimental to resident owners and absent owners alike.

Careful consideration should be taken when enforcing rental restrictions within HOA communities and absent owners and renters alike should understand that reasonable restrictions will more than likely be enforceable and not subject to challenge.

Homeowners Association (HOA) Attorney
Note: The information contained is not legal advice and does not establish an attorney-client relationship. Contact us via email Ryan.McClure.Esq@gmail.com, website: http://www.rpmcclurelaw.com/, or call us at 951.818.0687

Coming Soon

I will be posting a short article on the following topics based on popular demand. Readers of my Blog! have asked very specific questions around the following area's;

• Condo Insurance-Separate Interest Insurance Policies vs. Master Policy Coverage.
• Flooding Damage
• Mold Issues including Toxic Mold

These articles and others will be coming soon!

Choices... Choices

Even before a resident owner in a HOA community goes into default or foreclosure they may be faced with the choice of whether to pay or not pay their HOA dues. I have heard from both HOA Boards and community members that they are often faced with whether to pay the HOA dues or take that specific sum of money and apply it to their now-adjusting mortgage payment.

Of course, the Board and the community feel the impact of these decisions in delinquent assessments, and on-going collection efforts, which many times are fruitless where the homeowner is so upside down they couldn't even contemplate paying the dues without first considering the impact on their current adjusting mortgage.

There is really no easy solution to this problem and each community is faced with a responsibility to collect the assessments to ensure a proper functioning community. However, if Boards take a hard line with the residents over unpaid assessments they may find that they eventually have another foreclosure in their community.

Note: The information contained is not legal advice and does not establish an attorney-client relationship. Contact us via email Ryan.McClure.Esq@gmail.com, website: http://www.rpmcclurelaw.com/, or call us at 951.818.0687