May the Board Transfer Common Area to Members in an HOA or Condo Association?

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):

  1. 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. 2/3 approval of members (Civil Code Section 1363.07)
  3. 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”.


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2 Responses to May the Board Transfer Common Area to Members in an HOA or Condo Association?
  1. jennifer mccarson
    August 4, 2011 | 3:27 pm

    Our h.o.a. is having a meeting on august 15th about us violating the rule about bbqing in the “common area”. about if they are going to fine us or not. just three weeks ago our neighbor was bbqing outside his home WITH a board member present! And nothing was send to our neighbor and the board member enjoyed the food. there was no warning sent to our neighbor or anything. Why are we being singled out? can they really enforce one rule with us but let the other neighbors get away with breaking the rule?

    • Beth Grimm
      September 18, 2011 | 4:45 am

      My question to you would be – did you present this scenario to the board? What did they say? Did you ask why you were being singled out (if that is the case)? If you can do that and report back to me about their answer then perhaps I can provide an answer as to why they might allow this because I don’t have a crystal ball. If they are doing that, they should fix their policy so everyone is treated the same.