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HOA Easements

Started by WarrenT • 10 replies • 755 views

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WarrenT (California)
Posts: 30
Posted:
Our HOA is a California corporation. The Board is considering granting an easement that would allow a resident to construct a outside deck over Association property (common area). The deck would be cantilevered and no portion would actually touch the Association property. They are referring to the proposed easement as an airspace easement. Our CC&Rs do not address such a situation and would presumably need to be changed. While only one resident is requesting to do this, presumably any resident could also request such an easement.

I question if the Board has the authority to grant such an easement even if a affirmative vote of 75% of the residents were to be obtained. I would value your opinions and questions.
CathyA3 (Ohio)
Posts: 6,299
Posted:
Sounds very iffy to me, but the cantilevering clouds the issue. You should read your governing documents and see what they say about common elements. My community's declaration says that all homeowners have the right to use the common elements, and that owners may not do anything that interferes with others' right to use them. Even if the proposed deck actually isn't sitting on the common elements, it definitely makes the ground underneath unusable by anyone else and may make maintenance (eg., cutting grass) impossible.

If I were facing such an issue, I'd run it by the association's attorney since you have a homeowner who wants to change the nature of a portion of the common elements. I'm pretty sure the board has no legal right to approve this; at the very least the membership should have to vote and there could be more legal hoops you'd have to jump through.
WarrenT (California)
Posts: 30
Posted:
Kathy, your advice appears very sound. Our CC&Rs contain essentially the same wording as yours. I have taken the time to research Calif. law regarding easements and have concluded that there is no such thing as an "airspace" easement. Any easement would include the underlying land. Further, that one may not occupy the property identified in an easement. In theory it may be possible to lease that portion of the common area needed to expand the resident's deck. In theory the condominium plan might also be changed. The Board intends to consult with the Association attorney, at a cost to the general membership for the benefit of one member, not something that I support as I feel that when Association money is spent it should benefit the entire membership in some way. Thanks.
GeorgeS21 (Florida)
Posts: 3,808
Posted:
This, I believe, falls into the category of "too hard."

First, I would think the CCRs would need to be amended, in advance.

Second, apparently one owner is driving this truck ... unless there is an overwhelming community "goodness" associated, it probably should not be considered.
JeffT2 (Iowa)
Posts: 880
Posted:
check out: https://www.davis-stirling.com/HOME/Granting-Exclusive-Use

Membership Approval. Unless the association's governing documents specify a different percentage, giving an owner exclusive use of any portion of the common areas requires the approval of 67% of the membership. (Civ. Code §4600(a).) When presenting it for a vote, the board must specify (i) whether the association will receive any monetary consideration for the grant and (ii) whether the association or the transferee will be responsible for providing any insurance coverage for exclusive use of the common area. (Civ. Code §4600(c).)
CathyA3 (Ohio)
Posts: 6,299
Posted:
If this is a condo community, you generally have much less wiggle room when it comes to architectural non-conformity. It would be hard to justify allowing one unit owner to have something that none of the other unit owners have. And that's even before you get into the issue of converting common elements to something that only one owner has access to. I'm pretty sure the board should say no for both reasons.
KerryL1 (California)
Posts: 14,550
Posted:
Ah, condo, I see. The exteriors of our condo buildings are common areas. We are not permitted to penetrate those surfaces for any reason. The walls, ceilings floors of our balconies are exclusive use common areas and we must not penetrate them either. the main reason is to prevent any sources of water intrusions.

Would this deck cantilever off of the common area exterior of the building? Or would it cantilever off of an existing balcony or deck (exclusive use common area?).

How far off the ground would this deck be?

Our CC&Rs do have the word airspace in them, but I can't remember the context and don't have time to look it up now.

IMO, the Board should deny this easement (and maybe varian?) as a threat to the structural integrity of the building. If they don't have the courage to do it, I think it's well worth it to pay an HOA attorney for a written opinion.

JeffT2 (Iowa)
Posts: 880
Posted:
What is the common area being used for now? Some common area is valuable and is needed for emergency access, and some common area is not needed and could easily be given away.

Suggestion: inform the 'resident' of what you have learned so far about the approval needed (67%), and the costs of obtaining that approval, and the cost of the lawyer (now and later) and the cost of an engineer and surveyor, and if they want to pay for it all, then you can consult with the lawyer with no guaranty of approval.
PaaN
Posts: 219
Posted:
Quote:
Posted By JeffT2 on 08/27/2018 9:55 AM
check out: https://www.davis-stirling.com/HOME/Granting-Exclusive-Use

Membership Approval. Unless the association's governing documents specify a different percentage, giving an owner exclusive use of any portion of the common areas requires the approval of 67% of the membership. (Civ. Code §4600(a).) When presenting it for a vote, the board must specify (i) whether the association will receive any monetary consideration for the grant and (ii) whether the association or the transferee will be responsible for providing any insurance coverage for exclusive use of the common area. (Civ. Code §4600(c).)

CASE CLOSED
WarrenT (California)
Posts: 30
Posted:
Our HOA is incorporated as a condo development. In fact the units are individually owned mobile homes. The common area that a resident wishes to occupy in order to expand his deck is primarily devoted to landscape. The land in question is also very near the edge of a cliff/slope. The question of who would be responsible if the slope failed, and the Association has experienced slope failures in the past, is very relevant. All advice and opinions received make good sense to me and I will forward them to the Board members.
JohnC46 (South Carolina)
Posts: 14,265
Posted:
For what I believe, Paan nailed it.

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