Granting exclusive use of common area

JeffT5 (California)
Posts: 26

Posted:

See https://www.davis-stirling.com/HOME/G/Granting-Exclusive-Use

Our community will grant temporary parking permits for residents to use to park in outdoor spots (which are typically reserved for visitors). These permits typically last no more than around four weeks. A homeowner suggested that if we can permit this type of exclusive use free of charge, then we could rent these spots for extended duration. The board disagreed, stating doing so would be in violation of CC 4600. As I do not see any mention of time or money in CC 4600, it would seem to me that if the temporary permits can be granted, then the spots could be rented out for extended duration. Conversely, if it is a violation of CC 4600 to rent the spots out, then it would seem to follow that granting the temporary permits would be a violation of CC 4600.

Might anyone else in here have any insight on this?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A HOA is a non profit corporation but notbl a charitable one. Any type of additional money outside of dues collection can be subject to taxation. So collecting money outside of covering expenses can cost the HOA in taxes.

Former HOA President

KerryL1 (California)
Posts: 14,550

Posted:

Visiting your citation, JeffT, it says: "GRANTING EXCLUSIVE USE OF COMMON AREA
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).)

So it looks like your Board is wrong to give a resident a common area space for up to a month. It seems wrong to me, too, if other residents who need that space for visitors can't use one because they're all the taken, and a few are occupied long term.

Or does your HOA have plenty of these common area spaces and they're usually empty ones for anyone's visitors? So...how many homes and how many visitor parking spaces do you have.

What do your CC&Rs say about giving exclusive use-like privileges to the common area? (Your true "exclusive use common areas" are listed somewhere in your governing documents.

JeffT5 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 8:15 AM
Visiting your citation, JeffT, it says: "GRANTING EXCLUSIVE USE OF COMMON AREA
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).)

So it looks like your Board is wrong to give a resident a common area space for up to a month. It seems wrong to me, too, if other residents who need that space for visitors can't use one because they're all the taken, and a few are occupied long term.

Or does your HOA have plenty of these common area spaces and they're usually empty ones for anyone's visitors? So...how many homes and how many visitor parking spaces do you have.

What do your CC&Rs say about giving exclusive use-like privileges to the common area? (Your true "exclusive use common areas" are listed somewhere in your governing documents.

The additional spaces used up by the temporary parking passes seldom to never has an impact on the ability of guests to find spots within our community. If the board is indeed in violation of CC 4600 by issuing these temporary passes, what actions can be taken? While it is not clear to me if the board actually knows they are in violation of CC 4600, they have admitted renting those spots out would be a violation of CC 4600. Yet the only difference between renting them out and giving out free temporary passes is duration and money - neither of which are mentioned in CC 4600.

How can it be any less wrong if the issuance of such permits does not use up spaces such that there is no visitor parking? Does CC 4600 or any other code say anything about that? If not, then it would seem to me that the impact it has on available parking is irrelevant.

We have around 150 to 200 units in our association (all two car garages) and around one outdoor spot per 3 units. For reasons which have never been made clear, the association wants to keep these spots around 90% empty and have people park on neighboring surface streets.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By JeffT5 on 11/16/2023 9:10 PM
See https://www.davis-stirling.com/HOME/G/Granting-Exclusive-Use

Our community will grant temporary parking permits for residents to use to park in outdoor spots (which are typically reserved for visitors). These permits typically last no more than around four weeks.

If the temporary permit is for more than a day (for say moving van purposes), then I say the Board is breaking the law and/or violating its covenants.

Furthermore there are liability concerns here. If an insurance claim arises even remotely related to this unlawful use, then I can see the insurer rejecting the claim.

An owner objecting to this should start with IDR. See https://www.davis-stirling.com/HOME/I/Internal-Dispute-Resolution. Subsequently the owner would have to go to court.

CathyA3 (Ohio)
Posts: 6,299

Posted:

Look in your CC&Rs to see if there is language such the following:

"The Common Elements comprise, in the aggregate, a single freehold estate and shall be owned by the Unit Owners as tenants in common and ownership thereof shall remain undivided. No action for partition of any part of the Common Elements shall be maintainable, not may any Unit Owner otherwise waive or release any right in the Common Elements." (We're condos; an HOA may have different language.)

"Each Unit Owner may use the Common Elements for all purposes for which they are designed and intended, and no Unit Owner may hinder or encroach upon the lawful rights of any other Unit Owner with regard to such use of the Association's property or the Common Elements.... No Owner may interfere with another Owner's right to use the Common Elements."

Common Elements and Limited (Exclusive Use) Common Elements are probably defined as such somewhere in the document. The board has no authority to change how a particular piece of the property is defined. That would require approval of the membership since, by converting common area to exclusive use common area, you're taking something away from people. It doesn't matter that it's a small piece or a temporary conversion. If your CC&Rs don't define Reserved Parking space as a thing, then the board can't just do it on the fly - it takes an amendment to the CC&Rs and approval by a majority of the owners (probably a super-majority).

And if there is plenty of open parking, then the board really has no justification for this. The only exception would be if the board is responding to a request for a reasonable accommodation, in which case signage and other jumping-through-hoops is required.

In short, I agree with ElleN's take on this.

KerryL1 (California)
Posts: 14,550

Posted:

As I my way above, I agree with Elle & Cathy. the statute is very clear on this point IF we're talking about granting an owner "exclusive use" of a common area. To actually 'grant formal status to an owners of a common area space to be that person's exclusive use common area requires owners' votes.

I got mired in the language of exclusive use common area and the "granting " of it. That's not what Jeff5 means;. So, now, I need to know the language in Jeff's CC&Rs and or Rules & Regs about the use of the common area parking spaces. The CC&Rs might just say something like ours: "(c) Control Parking. Subject to the provisions of this Declaration, the Association shall have the right to control parking within the Parking Garage and to promulgate Rules to control parking in a manner consistent with this Declaration."

And we have a ton of rules about parking in our 3-level underground garage partly due to our large-city-center setting, where street parking is expensive and scarce.

Our 16 Visitor Parking spaces (200+ condos) are in this garage. Residents and their employees aren't allowed to park in them. Only visitors to our condo units. Our Rules permit visitors to stay for up to 3 days with a pass. With permission from our PM, sometimes visitors may stay longer. There are no in-&-out privileges and no reservations may be made. Only two visitor cars per Unit are permitted at one time in VP

The Rule or CC&R to allow any visitors to park in any visitor spaces for a limited amount of time is up to the Assoc. Civil 4600 doesn't apply. Since your HOA seems to hav ample VP, your rules could be more lenient than ours. But, avoid any rule that gives a resident guaranteed use at all times of a particular VP space. That DOES become "exclusive use common area" and may not occur per Civ. 4600. Still, it might be time for the Boar to place rules about VP on an open meeting agenda and discuss possible changes.

There are 2-car garages and re there driveways too for extra cars, Jeff?

The reason that residents must park off the premises if they can's use their garage or driveway is to keep VP spaces open for visitors. We have the same rules. But WHAT is the exact wording in which document, Jeff, involving " the association wants to keep these spots around 90% empty and have people park on neighboring surface streets."

JeffT5 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 1:01 PM
As I my way above, I agree with Elle & Cathy. the statute is very clear on this point IF we're talking about granting an owner "exclusive use" of a common area. To actually 'grant formal status to an owners of a common area space to be that person's exclusive use common area requires owners' votes.

I got mired in the language of exclusive use common area and the "granting " of it. That's not what Jeff5 means;. So, now, I need to know the language in Jeff's CC&Rs and or Rules & Regs about the use of the common area parking spaces. The CC&Rs might just say something like ours: "(c) Control Parking. Subject to the provisions of this Declaration, the Association shall have the right to control parking within the Parking Garage and to promulgate Rules to control parking in a manner consistent with this Declaration."

And we have a ton of rules about parking in our 3-level underground garage partly due to our large-city-center setting, where street parking is expensive and scarce.

Our 16 Visitor Parking spaces (200+ condos) are in this garage. Residents and their employees aren't allowed to park in them. Only visitors to our condo units. Our Rules permit visitors to stay for up to 3 days with a pass. With permission from our PM, sometimes visitors may stay longer. There are no in-&-out privileges and no reservations may be made. Only two visitor cars per Unit are permitted at one time in VP

The Rule or CC&R to allow any visitors to park in any visitor spaces for a limited amount of time is up to the Assoc. Civil 4600 doesn't apply. Since your HOA seems to hav ample VP, your rules could be more lenient than ours. But, avoid any rule that gives a resident guaranteed use at all times of a particular VP space. That DOES become "exclusive use common area" and may not occur per Civ. 4600. Still, it might be time for the Boar to place rules about VP on an open meeting agenda and discuss possible changes.

There are 2-car garages and re there driveways too for extra cars, Jeff?

The reason that residents must park off the premises if they can's use their garage or driveway is to keep VP spaces open for visitors. We have the same rules. But WHAT is the exact wording in which document, Jeff, involving " the association wants to keep these spots around 90% empty and have people park on neighboring surface streets."

No driveways for extra parking. CC&R says something like "the board can make parking rules from time to time". There is no wording in which the association wants to keep these spots around 90% empty and have people park on neighboring surface streets. I am going off of their actions. And as many say, "actions speak louder than words". Their actions suggest they do not want to take the time and effort to make our community more harmonious and friendly - especially for those with third vehicles. Yet these people with third vehicles are not complaining - at least to the best of my knowledge - about having to park on surface streets while almost all the outdoor spots in our community remain vacant.

JeffT5 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 1:01 PM
As I my way above, I agree with Elle & Cathy. the statute is very clear on this point IF we're talking about granting an owner "exclusive use" of a common area. To actually 'grant formal status to an owners of a common area space to be that person's exclusive use common area requires owners' votes.

I got mired in the language of exclusive use common area and the "granting " of it. That's not what Jeff5 means;. So, now, I need to know the language in Jeff's CC&Rs and or Rules & Regs about the use of the common area parking spaces. The CC&Rs might just say something like ours: "(c) Control Parking. Subject to the provisions of this Declaration, the Association shall have the right to control parking within the Parking Garage and to promulgate Rules to control parking in a manner consistent with this Declaration."

And we have a ton of rules about parking in our 3-level underground garage partly due to our large-city-center setting, where street parking is expensive and scarce.

Our 16 Visitor Parking spaces (200+ condos) are in this garage. Residents and their employees aren't allowed to park in them. Only visitors to our condo units. Our Rules permit visitors to stay for up to 3 days with a pass. With permission from our PM, sometimes visitors may stay longer. There are no in-&-out privileges and no reservations may be made. Only two visitor cars per Unit are permitted at one time in VP

The Rule or CC&R to allow any visitors to park in any visitor spaces for a limited amount of time is up to the Assoc. Civil 4600 doesn't apply. Since your HOA seems to hav ample VP, your rules could be more lenient than ours. But, avoid any rule that gives a resident guaranteed use at all times of a particular VP space. That DOES become "exclusive use common area" and may not occur per Civ. 4600. Still, it might be time for the Boar to place rules about VP on an open meeting agenda and discuss possible changes.

There are 2-car garages and re there driveways too for extra cars, Jeff?

The reason that residents must park off the premises if they can's use their garage or driveway is to keep VP spaces open for visitors. We have the same rules. But WHAT is the exact wording in which document, Jeff, involving " the association wants to keep these spots around 90% empty and have people park on neighboring surface streets."

No driveways for extra parking. CC&R says something like "the board can make parking rules from time to time". There is no wording in which the association wants to keep these spots around 90% empty and have people park on neighboring surface streets. I am going off of their actions. And as many say, "actions speak louder than words". Their actions suggest they do not want to take the time and effort to make our community more harmonious and friendly - especially for those with third vehicles. Yet these people with third vehicles are not complaining - at least to the best of my knowledge - about having to park on surface streets while almost all the outdoor spots in our community remain vacant.

JeffT5 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 11/17/2023 1:01 PM
As I my way above, I agree with Elle & Cathy. the statute is very clear on this point IF we're talking about granting an owner "exclusive use" of a common area. To actually 'grant formal status to an owners of a common area space to be that person's exclusive use common area requires owners' votes.

I got mired in the language of exclusive use common area and the "granting " of it. That's not what Jeff5 means;. So, now, I need to know the language in Jeff's CC&Rs and or Rules & Regs about the use of the common area parking spaces. The CC&Rs might just say something like ours: "(c) Control Parking. Subject to the provisions of this Declaration, the Association shall have the right to control parking within the Parking Garage and to promulgate Rules to control parking in a manner consistent with this Declaration."

And we have a ton of rules about parking in our 3-level underground garage partly due to our large-city-center setting, where street parking is expensive and scarce.

Our 16 Visitor Parking spaces (200+ condos) are in this garage. Residents and their employees aren't allowed to park in them. Only visitors to our condo units. Our Rules permit visitors to stay for up to 3 days with a pass. With permission from our PM, sometimes visitors may stay longer. There are no in-&-out privileges and no reservations may be made. Only two visitor cars per Unit are permitted at one time in VP

The Rule or CC&R to allow any visitors to park in any visitor spaces for a limited amount of time is up to the Assoc. Civil 4600 doesn't apply. Since your HOA seems to hav ample VP, your rules could be more lenient than ours. But, avoid any rule that gives a resident guaranteed use at all times of a particular VP space. That DOES become "exclusive use common area" and may not occur per Civ. 4600. Still, it might be time for the Boar to place rules about VP on an open meeting agenda and discuss possible changes.

There are 2-car garages and re there driveways too for extra cars, Jeff?

The reason that residents must park off the premises if they can's use their garage or driveway is to keep VP spaces open for visitors. We have the same rules. But WHAT is the exact wording in which document, Jeff, involving " the association wants to keep these spots around 90% empty and have people park on neighboring surface streets."

No driveways for extra parking. CC&R says something like "the board can make parking rules from time to time". There is no wording in which the association wants to keep these spots around 90% empty and have people park on neighboring surface streets. I am going off of their actions. And as many say, "actions speak louder than words". Their actions suggest they do not want to take the time and effort to make our community more harmonious and friendly - especially for those with third vehicles. Yet these people with third vehicles are not complaining - at least to the best of my knowledge - about having to park on surface streets while almost all the outdoor spots in our community remain vacant.