Often in common interest developments like condos, townhomes and even single family home developments people look around and see areas of land that are not being fully utilized and think, “I could use an extra 20 feet of back yard”, or “If I had that space I would create a gazebo,” or “That rectangle would make a great parking space for my extra vehicle.”
Here is an actual question from the board’s side of the table:
“In a PUD, how do you go about legally allowing some homeowners to expand patios into common area when some units do not have the space to do so. As our expenses for common area are so high (water and maintenance), we are looking at this as a cost-saving technique for the association as a whole”.
What it takes is this (in California):
- A ballot measure sent to owners for voting using the election requirements found in Civil Code Section 1363.03 (a secret double envelope ballot distributed to members and returned to an inspector of elections for counting at an open association meeting, to allow the transfer of property.
- 2/3 approval of members (Civil Code Section 1363.07)
- A proper legal document that describes the transfer (an easement is generally preferred over an actual property transfer, and a revocable use agreement is another option, allowing the Board to revoke the agreement if the
owner violates certain conditions of use.
So it seems like a lot of work. If it is one or less than all owners that are asking – and the property in question is not really conducive to use by others in the community, or is too expensive to maintain, or there is a reason to even consider it, the board might want to consider the request. The owner(s) who will benefit could be asked to bear the expense of the balloting and drafting of the agreement. The board is not required to send out a ballot for an owner who would like to have exclusive use of common area, but it could. An owner could petition the board to take a
vote using the California petition process.
In the above question, the board is looking at the situation from a cost savings point of view. The result, however, if approved, would result in a situation where some owners would gain an advantage that others would not. If the transfer was approved by 2/3 of the members it should be legal. I would suggest that it would be easier for those voting (who would not benefit directly but may benefit from a maintenance cost savings) to consider approving
the measure if those who were benefiting directly were bearing the expense of the “ transaction”.