Use of the Common Area Facilities in HOAs and Condos? Who’s It For?

I have had quite a few emails lately from owners who are complaining about the Board allowing all kinds of use of the common area that infringes on owner’s rights.

Here is the latest email on the subject:

“Usage of the common areas  should be for ALL residents. However, more and more meetings, classes, groups are taking over and those of us who want to use the library for books or computers are told they can’t use the library.”
This same kind of complaint tends to arise when the swimming pool is used for swim team practice, or the clubhouse is rented out for parties or events.
Sometimes boards look for ways to raise money; sometimes it is about community functions (within or outside the community, and sometimes it is just a lack of consideration for individuals. Whatever the reason, a board has to consider some things when granting use of common area facilities that might cause angst among some members or deny non-exclusive use.
Is the Board Authorized to Allow the Use?  It depends. The governing documents define the authority of the board and the rights of the owners. When they call for non-exclusive use of the facilities that means open to all the members. Of course if all members can reserve the clubhouse for functions, and it’s a large association, that could tie up the clubhouse on many weekends.  If the library in the above situation is in the clubhouse and this prevents individual use on weekends or a lot of times during the week, then the question is: “What is best for the community?” The Board has to consider the community as a whole. In the above case, if there is a library within the clubhouse or community room that is set aside with books and computers and has a door that closes (and hopefully locks if there are computers in there and outsiders using the facilities), then there seems no reason to bar the use of the room even in the clubhouse or community center is being rented out or used for a function.
Is the Facility Equipped for Disabled Access and Use?  If an association allows functions that invite persons outside the homeowners association to attend, then the ADA requirements kick in and the area would probably have to be equipped for disabled access and the bathrooms remodeled to meet ADA requirements. This is not necessary if the use of the facilities is confined to owners, residents and guests. It is best to get a legal opinion on this if there is any question about use because an attorney would need to know all the facts.
Is Exclusive Use of Common Area Property Involved? Does Civil Code Section 1363.07 apply?  In the context of the above question, this is probably not an issue. However, if the Board is granting exclusive use of some part of the common area property to an owner for exclusive use (such as a patio or deck extension), then 2/3 of the owners must approve it, or there is not authority to do it. Again, it is best to get a legal opinion on this if there is any question about use because an attorney would need to know all the facts.
There May Be Liability Exposure Invited By The Activity.  For activities like parties, swim team use of the pool facilities, the possibility of alcohol being served, etc., then liability exposure can be increased by group use of the facilities. Thus it is important to consider insurance quandaries. Should the Board require the group use to be insured by the other party? Should it require indemnification protection for the Association? Probably. Once again, it is best to get a legal opinion on this if there is any question about use because an attorney would need to know all the facts.
When a Board is considering some use of common area property or facilities that would exclude owners or residents for any period of time, it is also wise to survey the members and see how they feel about it before jumping in with both feet.
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2 Responses to Use of the Common Area Facilities in HOAs and Condos? Who’s It For?
  1. Abdi Mostofi
    March 13, 2013 | 3:30 am

    I am on the board of an HoA. one of our homeowners
    has taken over two storage lockers believing that they own them
    while it is very clear that these lockers are common area of the
    HoA. This homeowners has made a bogus recording on his deed
    showing that these two lockers belong to them which is a fraud.
    We have 19 storage lockers and 19 homeowners but right now
    2 homeowners are without lockers. What can we do to resolve
    this problem? Thank you very kindly for your help and advice.
    abdi mostofi

    • Beth Grimm
      March 15, 2013 | 3:56 am

      In a case like this, giving an answer without reviewing the underlying documents like the CC&Rs, Condo Plan, and some of the deeds would not be responsible. It certainly sounds from your description that there is something strange and unfair occuring, but I would be remiss if I suggested any opinion without reviewing the association documents. (This is not an invitation to send them to me unsolicited by the way.)