structure in common area

Started by BillT11 • 9 replies • 642 views

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BillT11 (California)
Posts: 4

Posted:

In California a 2/3 vote of owners is required to install anything in the common area - fence, deck, bench, garden, etc.
If such a structure was installed without a vote happening at all, does it have to be removed? Whose is responsible for doing so?
What if that person is unknown or long gone (previous owner)?

Does the board vote to remove it or the owners?

Thanks.

AugustinD
Posts: 5,144

Posted:

Does any member benefit from this structure? If so, can you explain in what way?

Does the board want to keep this structure?

BillT11 (California)
Posts: 4

Posted:

This common area doesn't look and feel like one, as it is a series of 10 small back yards, each one behind half a duplex. (5 buildings).

Over the years, owners have planted gardens, trees, one built a treehouse, another small deck, and in one case, a fence. Technically anyone can use any of these, but we tend to stay out of these yards behind anyone's home.
Everything is accessible except the fence means you have to walk around a home to access that yard.

In theory anyone can use the deck, but they don't for two reasons - it's 6 feet from one place's back door and because that owner paid and built it.

Now we've learned about this 2/3 owner vote rule, and it's too bad because a number of folks have put time and effort into making these back yards nice.

We're wondering if we need to an owner OR bod retrospective vote if these things can stay or must go.

Thanks.

AugustinD
Posts: 5,144

Posted:

Ask any competent HOA or land use attorney, and they will tell you this issue is important and must be resolved. Possibilities:

-- Because the structures have been present so long, they may have something in the nature of a permanent easement. The HOA may very well be prohibited from laying their hands on the structures.

-- It is possible that, by virtue of these structures occupying the land, the unit's owner may own the land pursuant to adverse possession statutes and case law? I think this is probably unlikely, so 'just saying' for now.

-- If for example someone falls out of the treehouse, then trust that the victim and the victim's insurer will go after the HOA (because the HOA's insurer has deep pockets, and the HOA blundered), for failing to maintain the treehouse properly (since it's on common area) or for not removing it.

-- In general I think a competent HOA or land use attorney would counsel never giving anyone permission to put a structure on the common area.

Possible solution:
Do your governing documents provide a way to convert common area to limited common area, whereby each owner is responsible for maintaining these 'backyards'? No doubt all the owners want their little backyards.

Read all the answers here. Do more homework. Then schedule a meeting with a HOA attorney, going in with a list of questions and what your board thinks may be solutions.

MarkW18
Posts: 1,290

Posted:

Would this be of help?

https://www.davis-stirling.com/HOME/Exclusive-Use-Area

BillT11 (California)
Posts: 4

Posted:

The owners usually disagree on most things. This all came about because we were trying update the governing documents with the help of a lawyer. They are 30+ years old.

The treehouse seems like a problem because of someone hurting themselves.

Separately, I said "deck", but it's really a wood patio that's 7 inches off the ground, and all can access it. If the board does not vote to remove it, then is it breaking a rule? Or does it now need a vote from the owners?

ty

AugustinD
Posts: 5,144

Posted:

Quote:

Posted By BillT11 on 11/25/2019 8:08 AM
Separately, I said "deck", but it's really a wood patio that's 7 inches off the ground, and all can access it. If the board does not vote to remove it, then is it breaking a rule? Or does it now need a vote from the owners?

I believe it is breaking numerous rules, both in your covenants and from case law. The deck's presence on common area is also ignoring much legal guidance from HOA attorneys and land use attorneys.

You said your HOA is in the process of amending the governing documents. MarkW18's citation is worth reading. One of the amendments to the governing documents should probably be the creation of "exclusive use areas" (a.k.a. limited common areas). Draft what your board thinks this section should say, then present it to the attorney with all the other changes the board wants.

The one technical question I have now is whether there needs to be two separate votes (with different requirements for passage): One vote for converting common area to exclusive use area, and another vote for the amendments to the governing documents. Your board should ask the attorney this as well.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Could this duplex community work proactively to allow the amenities in the common areas since there seems to be a long-standing acceptance of allow duplex owners to carve out their personal niche in the back of each unit?

Sure, these additions are "violations" by old standards but there seems to be a community culture that suggests people want a bit of creative space.

BillT11 (California)
Posts: 4

Posted:

Thank you for the feedback.
We might be able to get a culture of understanding, but not a 2/3 majority, officially. We tried a ballot to give exclusive use to folks, and it was a 50/50 tie. Some folks have very small areas behind their place and others have nicer ones. So not everyone has the same incentive to make those areas a "back yard".

KellyM3 (North Carolina)
Posts: 2,239

Posted:

Quote:

Posted By BillT11 on 11/26/2019 9:18 AM
Thank you for the feedback.
We might be able to get a culture of understanding, but not a 2/3 majority, officially. We tried a ballot to give exclusive use to folks, and it was a 50/50 tie. Some folks have very small areas behind their place and others have nicer ones. So not everyone has the same incentive to make those areas a "back yard".

It appears you are handling the issue the correct way in terms of process. It would be nasty and somewhat unreasonable for your board to suddenly change course and demand removal of these "violating" amenities.

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