Exclusive Use Common Area Dilemma

The update to Civid Code 4775 (http://www.davis-stirling.com/Main-Index/Statutes/Civil-Code-4775) that took effect on January 1, 2017, transfers ownership of “exclusive user common areas (EUCA)” from the HOA to the homeowner. I have a dilemma as to what the Architectural Committee can approve and what authority we can use when asking the homeowner to “return the unit to its original condition” when remodeling the the former EUCA.”

History
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Recently a new owner of a 3 bedroom upstairs unit relocated the “crawl space entrance” from the “walk-in closet” to “laundry room” He also open up a an exiting “coat closet” to allow a pulldown stairs to the attic from the “laundry room” to have access from the hallway. In the attic he reinforced the flooring, installed insulation and drywall, install recess lighting, rerouted/replaced ductwork and install new electrical receptacles. He also pieced to outside perimeter with new dryer vent duct and vent ducts around the existing attic louver vents to improve the efficiency to outside world. This attic space is about 200 square feet and one can easily stand up in it. He intends to put attic fans over the attic louver vents to make the space cooler.

Code Enforcement
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Non of this work was accomplished with City permits or permission of the HOA Architectural Committee. We stop this work by Code enforcement, where City Code (http://harbourvistanews.com/PlanningRemodeling/PDF/useOfAtticSpace.pdf) specifically applies for attic spaces. The drywall will have to be removed, floors must remain unfinished, only one light is allowed. The City levied additional fees because work was performed without permits. IT should be noted that the work was top rated and the owner is intending to make this unit a rental.

Architectural Committee
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At the Architectural Committee Meeting, we approved the remodeling as long as he meets City code. We even approved the the piercing to the outside walls if he painted them. But we asked him to put the “attic crawl space entrance” back to the “walk in closet”. I feel returning the “crawl space entrance” to its original condition is “Arbitrary and Conspicuous” and the Architectural committee need to retract this. The Committee’s reason is to make it difficult for a resident to access the attic. I do not think this is on solid ground as a reason. Being the spokesperson for the Architectural Committee, this is a difficult place to be in without appearing heavy handed.

Have any of you share your experiences with a similar issue and any advice would be appreciated?

More than 55% percent of my Association are rentals. We have a booming real estate market for investors. The units are cheap (the land lease expires in 2041), and with cash only which seems to be the norm, return on investment is very high almost 10% to 12%. We have no restriction for rentals. The owner is a real estate attorney and owns a property management company. This owner also has one more property in our complex (a rental) and he owns 20% of another Association around the corner from us. He has taken the City to Court for "Arbitrary and Conspicuous and won. And our HOA spend approximately $120,000 for one homeowner that wanted to live her on a case "did not asked for permission" whose settlement added only $30,000 to the HOA. Our HOA runs an operating deficit of 9% every month.

The whole condo is a rental. We do not allow sub leasing. He is renting a three bedroom condo. Our CC&R' do not preclude this (Circa 1980).

A safety question? Do you have a "Fire wall" in this attic area? Does the attic connect to other units? This seems to be a potential fire hazard if you ask me. Besides City Codes I would check fire ones as well...

We are spending too much on this structural issues of condo attic . FYI Our City enforces the firewalls between condos. There is one in this attic completely finished. If it needs to be touched, City code will be enforced. Now can we go back to why the Committees decision to put the "crawlspace back to its original location is not Arbitrary and Conspicuous or is it?

Chances are this is all moot. Attic spaces are normally framed merely as part ot f the roof structure and to hold up the drywall. To make a floor sutiable for walking (or any living space use) will likely require up-sizing every joist.

There will also probably be ceiling height issues in the newly created space, and since you've now made a three story house in one that was formerly two stories, there might be zoning issues. The added weight may also impact the strucure and foundations below.

Before you get too worried, let his hired engineer work him over.

Then is this correct?

the only issue between your ACR & the Owner is your requirement to put the crawlspace back the way it was? You personally think it's "arbitrary & conspicuous [sic]" Please note the word is "capricious" and look it up. Now....what are YOUR reasons for thinking your Committee's decision is arbitrary & capricious"?

How can this be arbitrary & capricious if it only seeks a return it to the original condition?

As I stated in my first reply, your interpretation of the new Civ. Code 4775 is incorrect. Read it again. I think you'll find that the HOA still has authority over these exclusive use common areas. The Civ. Code tries to clarify who maintains them. And that must rely on each HOA's CC&Rs. I don't have time now to read it carefully but might later.

Michael wrote: "The only way our Charter can support this restriction [on] him is to prove that relocating the attic entrance is 'detriment to the community.""
And: "Our reason right now is to prevent him from improving the access to attic that is internal only to his unit."

So....you have a very long post and really only one question in it. I can't answer it; I'm not an attorney and you're talking about lawsuits words.

Why, in fact, does the rest of your committee want to deny him this access given there's no detriment to the community??

You might want to ask your Board if they or you can consult with your HOA attorney about the "arbitrary & capricious" argument.

As nted above, in CA, owners can appeal an ARC committee's decision to the Board, so maybe that could happen.

Btw, if the attic is NOT exclusive use common area, why did you bring up the expanded legislation about the topic?

KerryL1 your input has been valuable. I am very prejudice because our HOA pursued another lawsuit because another homeowner performed remodeling without permission leaving us $90,000 in the hole. Anyway, I presented my arguments to my Architectural cCommittee ( I am the Chairman) and they still wish to asked the home owner to restore the attic crawl space entrance to its original location.

This is what I have put in the minutes.

"Relocation of the attic crawl space entrance will not be allowed. The owner’s relocation of attic crawl space entrance must be returned to it original location in the master bedroom walk-in closet. The reason that the attic crawl space entrance is to remain in the master bedroom walk-in closet is too reduce the likely hood that attic space might be used as an unauthorized living space."

We have also asked this from the HOA Board:

"It was felt by the ARC membership, that the HOA Board should scrutinized this decision for its enforcement and legality. Specific decisions were based on interpretation of Civic Code 4775 which may not be fully understood."

At this point I want to run away from this as far as much as I can. The property owner is a Real Estate Attorney with very large holdings. He has sued my City twice for "Arbitrary and Capricious" and has won twice. This has been verified.