Common Interest Developments In General
What is a “common interest development” or “CID”?
The term “common interest development” (or “CID”) describes a form of real estate where each owner holds exclusive rights to a portions of the property typically called a unit or lot, and shared rights to portions of the property typically called the common area. The most numerous forms of CIDs, and the focus of the Condominium Bluebook, are the condominium and the planned development. The two other types of CIDs, the stock cooperative and the community apartment, are far less common and are not discussed here. For additional information, see Civil Code §1351.
What is the historical background and conceptual basis of the common interest development?
The evolution of common interest developments was recently traced by the California Supreme Court in the case of Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 33 Cal.Rptr.2d 63, upholding the enforceability of pet restrictions. Pertinent portions of the Supreme Court’s historical review are reprinted here with minor textual modifications and without citation to authorities found in the decision itself:
“The term “condominium,” which is used to describe a system of ownership as well as an individually owned unit in a multi-unit development, is Latin in origin and means joint dominion or co-ownership. The concept of shared real property ownership is said to have its roots in ancient Rome.
“To divide a plot of land into interests severable by blocks or planes, the attorney for the land developer must prepare a declaration that must be recorded prior to the sale of any unit in the county where the land is located. The declaration, which is the operative document for the creation of any common interest development, is a collection of covenants, conditions and servitudes that govern the project. Typically, the declaration describes the real property and any structures on the property, delineates the common areas within the project as well as the individually held lots or units, and sets forth restrictions pertaining to the use of the property.
“Use restrictions are an inherent part of any common interest development and are crucial to the stable, planned environment of any shared ownership arrangement. The viability of shared ownership of improved real property rests on the existence of extensive reciprocal servitudes, together with the ability of each co-owner to prevent the property’s partition. One authority suggests that medieval building societies, an early form of shared real property ownership, had failed for lack of enforceable regulations.
“Restrictions on the use of property in any common interest development may limit activities conducted in the common areas as well as in the confines of the home itself. Commonly, use restrictions preclude alteration of building exteriors, limit the number of persons that can occupy each unit, and place limitations on, or prohibit altogether, the keeping of pets.
“Restriction on property use is not the only characteristic of common interest ownership. Ordinarily, such ownership also entails mandatory membership in an owners’ association, which through an elected board of directors is empowered to enforce any use restrictions contained in the project’s declaration or master deed and to enact new rules governing the use and occupancy of property within the project. Because of its considerable power in managing and regulating a common interest development, the governing board of an owners’ association must guard against the potential for the abuse of that power. As one authority observes, owners’ associations “can be powerful forces for good or for ill” in their members’ lives. Therefore, anyone who buys a unit in a common interest development with knowledge of its owners’ association’s discretionary power accepts “the risk that the power may be used in a way that benefits the commonality but harms the individual.” Generally, courts will uphold decisions made by the governing board of an owners’ association so long as they represent good-faith efforts to further the purposes of the common interest development, are consistent with the development’s governing documents, and comply with public policy.
“Thus, subordination of individual property rights to the collective judgment of the owners’ association together with restrictions on the use of real property comprise the chief attributes of owning property in a common interest development. As one court noted, “inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he [or she] might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization.
“Notwithstanding the limitations on personal autonomy that are inherent in the concept of shared ownership of residential property, common interest developments have increased in popularity in recent years, in part because they generally provide a more affordable alternative to ownership of a single-family home. New York Times (Aug. 18, 1994, p. 23A, col. 1) reported that 32 million Americans are members of some 150,000 homeowners associations and predicted that between 25 to 30 percent of Americans will live in community associations by the year 2000. The July 1997 issue of Common Interest (a publication of Common Interest Advocates, a legislative advocacy and government relations firm based in Sacramento, CA.) estimates that six million Californians reside in about 30,000 CIDs within the state and that number continues to grow.”
What is the difference between a condominium project and a planned development?
The determination of whether a property is developed as a condominium project or a planned development is usually based on the physical characteristics of the buildings. Projects with only vertically-stacked units are always condominiums. Projects with only detached homes are almost always planned developments. Projects involving horizontally attached homes, or a combination of different home types, can be formed as either condominiums or planned developments.
The most significant difference between condominium projects and planned developments is the distinct nature of the individually owned and group owned portions of the property. The individually owned portion of a condominium is called the unit, and typically consists of interior space within a defined set of walls, floors and ceilings. Condominium owners also frequently have exclusive use of decks, patios, and parking areas. The individually owned portion of a planned development is called the lot and typically consists of a piece of land and everything on it. The common area in a condominium is usually all of the structural elements of the building(s) housing the units, and all land and exterior areas. The common area in a planned development is usually streets, open space, and recreational facilities.
Condominium projects and planned developments also differ with respect to the form of joint ownership of common area. Title to at least some portion of the common area in a condominium must be held by the owners in percentage shares, and, in most condominiums, title to all of the common area is held this way. By contrast, title to the common area in a planned development is almost always held by the homeowners association. For additional information, see Civil Code §1351.
Drawings and Documents
What are the governing documents?
The term “governing documents” is used as a general reference to the entire group of legally recognized paperwork that creates and controls a condominium project or planned development. The governing documents typically include a subdivision map and/or condominium plan, a Declaration of Covenants, Conditions and Restrictions (or "CC&Rs"), Articles of Incorporation (if the project is incorporated), Bylaws, and Rules.
What is the subdivision map and condominium plan?
The terms “subdivision map” and “condominium plan”, as well as the less common terms “final map” and “parcel map”, describe types of drawings that illustrate how a property is divided into units or lots. These drawings show the exact location and boundaries of each unit or lot, and of the common area. They are prepared by licensed land surveyors, reviewed by government agencies, and recorded with the county at the time a condominium project or planned development is formed. Once recorded, the drawings become connected to every deed and mortgage on every unit or lot within the property, and this connection makes changing the map or plan very difficult. There can be several maps or plans recorded at different times as new portions of a project are added. In some condominium projects, a condominium plan is attached to the CC&Rs rather than recorded separately.
What is in the Declaration of Covenants, Conditions and Restrictions (sometimes called simply the “Declaration” or the “CC”)?
CC&Rs describe the rights and obligations of the homeowners association and of each owner. CC&Rs are recorded with the county recorder of the county where the property is located, and automatically bind anyone who becomes and owner of the property after the CC&Rs are recorded. CC&Rs vary widely in content and length, but usually cover the following topics:
- The boundaries of the common area and of each unit or lot;
- The owner usage restrictions, typically including occupancy limitations, pet regulations, and alteration controls;
- The maintenance responsibilities of the association and the individual owners;
- The allocation of association operating costs among the owners, and the mechanism for collecting owner payments;
- The insurance requirements for the association and each owner;
- The dispute resolution procedure; and
- The rights and protection of mortgage lenders.
CC&Rs are required for all condominiums and planned developments. They are prepared by the developer’s attorney, reviewed by a government agency (unless the project has fewer than five units or lots), and recorded with the county at the time a condominium project or planned development is formed. For additional information, see Civil Code §1353.
What is in the Articles of Incorporation and the Bylaws?
The Articles of Incorporation or “Articles” are usually short and often contain only the name of the homeowners association, the name of the association’s initial agent for the service of process (the person authorized to receive legal notices), and a statement that the association is a nonprofit mutual benefit corporation. Sometimes the Articles also include language about voting, directors, amendments, and dissolution of the association. Articles are required only when an association is incorporated. (Unincorporated associations sometimes have Articles of Association, but these are not required.) . Articles are prepared by the developer’s attorney, reviewed by a government agency (unless the project has fewer than five units or lots), and filed with the secretary of state. For additional information, see Corporations Code §§7130-7132.
The Bylaws describe the mechanics of association decisionmaking and management. Bylaws vary widely in content and length, but usually include the following:
- Numbers and selection methods for officers and directors;
- Notice, meting and voting procedures for owner and board decisions; and
- Association record keeping and reporting requirements.
Although Bylaws are common for both incorporated and unincorporated associations, they are required only for certain incorporated associations. Bylaws are prepared by the developer’s attorney and reviewed by a government agency (unless the project has fewer than five units or lots) at the time a condominium project or planned development is formed. But unlike Articles and CC&Rs, Bylaws are not recorded or filed with any government agency, and this makes them easier to change. For additional information, see Corporations Code §7151.
How do the HOA Rules relate to the other governing documents?
The CC&Rs usually empower the homeowners association to adopt Rules, and give the Rules the same binding power as the other governing documents. The Rules often provide usage restrictions relating to alterations, signage, waste disposal, parking, pets, and recreational facilities. Where the same topics are discussed in the CC&Rs, the Rules may add to or explain the CC&Rs but cannot conflict with them. Association Rules are usually enacted after some of the units or lots have been sold and the owners have taken control of the association. They are not subject to any governmental review and do not need to be filed or recorded with any governmental agency.
Why are the governing documents binding?
The law provides that the use of real estate can be restricted when a document describing the restrictions is recorded with the county where the property is located. The restrictions “run with the land”, meaning they apply to each owner who acquires the property after the restrictions are recorded. The map or plan, and the CC&Rs, are different types of recorded restrictions which “run with the land”, and that is why they bind each owner of a unit or lot. The Articles, Bylaws, and Rules are not recorded, but derive their binding power from the recorded CC&Rs. With the Articles and Bylaws, this binding power arises because the CC&Rs makes each owner a member of the homeowners association, and the law makes each member of the association subject to the association’s Articles and Bylaws. With the Rules, the binding power arises because the CC&Rs specifically empower the association to enact additional binding restrictions.
What if a provision of the governing documents conflicts with law?
The resolution of a conflict between the governing documents and the law depends the intent of the governmental body that enacted the law. Where the apparently conflicting law contains a phrase like “notwithstanding the provisions of the Declaration” or “notwithstanding anything to the contrary in the governing documents” in its text, the intent to override is clear and the law controls. Where the apparently conflicting law contains a phrase like “unless otherwise provided in the Declaration” or “subject to the provisions of the governing documents” in its text, the intent not to override is clear and the governing document provision controls. Where the apparently conflicting law contains no clear indication of whether it is intended to supersede conflicting provisions in governing documents, intent must be determined from the language and context of the law, and from historical records of its enactment. Consult an attorney in these cases.
What if a provision of the governing documents is ambiguous or unclear?
The meaning of ambiguous or unclear language depends on the intent of its author(s). The intent can sometimes be determined by examining other parts of the document relating to similar issues or analogous situations. Where this approach fails, ambiguous or unclear language should be given its most reasonable interpretation in light of laws relating to similar issues or analogous situations, and local custom and practice (i.e. how governing documents in similar projects are written and how other similar associations operate.) Consult an attorney if a significant legal issue is at stake.
What if a provision of the governing documents seems unreasonable or unfair?
Provisions of governing documents are upheld unless they are arbitrary, impose burdens on some residents that substantially outweigh their benefits to other residents, or violate fundamental public policy. Consult an attorney if a provision of the governing documents does not seem to meet these standards. For additional information, see Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 33 Cal.Rptr.2d 63.
How can an owner get a copy of the governing documents?
Upon an owner’s written request, the association must provide copies of all of the governing documents. The association may charge of fee that does not exceed the actual costs of reproduction. Copies of maps, plans and CC&Rs can also be obtained from the county recorder and from most title companies. For additional information, see Civil Code §1368(b) and Corporations Code §7160.
How can the governing documents be changed or amended?
The procedure for amending governing documents is discussed at length in Condominium Bluebook. For additional information, see Government Code §§66469 et. seq. (maps), Civil Code §§1355-1357 (CC&Rs), Corporations Code §§7810-7820 (Articles), and Corporations Code §7150 (Bylaws).
Who is the Declarant referred to in the governing documents, and why does the Declarant seem to have special privileges?
The Declarant is the original developer of the project, and he/she/it has special privileges and rights because he/she/it had virtually complete control over the content of the documents when they were prepared.
Should provisions relating to developer voting and annexation rights be removed from the governing documents?
It is advisable for homeowners associations to amend their governing documents to remove the developer-specific provisions as soon as the project is completely built out and sold. For additional information, see Civil Code §1355.5.
Ownership and Possession
Ownership and Control In General
What portions of a condominium project are individually owned?
In a condominium project, the individually owned area is called the unit. The exact physical location of each condominium unit within a particular project is shown on the recorded map or condominium plan for that project. The map or plan, and/or the CC&Rs, will also contain a definition of the term “unit” as it is used for that particular project, listing the elements of the building that are part of the unit. These definitions vary significantly from project to project, and it is unwise to apply generalizations or assumptions. Instead, read the definition with the following questions in mind:
- Does the unit include any exterior surfaces such as roofing, siding, or foundation?
- What portions of the interior walls does the unit include: the whole wall (i.e. both sides and everything in between), half the wall (i.e. everything from one side to a point halfway to the other side), one finished surface (i.e. only the wallboard or plaster on one side), or just the finish (i.e. the paint or paper)? Note that some unit definitions distinguish perimeter walls (i.e. walls between units, or between a unit and the common area) from partition walls (i.e. walls between rooms in the same unit), or structural walls (i.e. walls that help hold up the building) from non-structural walls (i.e. those that simply divide rooms). Where these wall-type distinctions are made, the portions of the wall that are part of the unit will vary depending on wall type.
- What portions of the floors and ceilings does the unit include: the entire floor or ceiling, all portions up to a midpoint, the finished portion (i.e. ceiling plaster or sheetrock, finished wood flooring), or just the finish (i.e. paint or carpet)? Here again, some definitions distinguish floors and ceilings between units, or between a unit and the common area, from floors and ceilings between levels of the same unit.
- What portions of the windows and doors does the unit include: the entire window or door, or only glass and screens? Note that some definitions distinguish interior doors from exterior doors. Does the definition include window and door frames? Does it include window and door hardware?
- Does the unit include all of the fixtures and appliances located within it? Note that the term “fixtures”, when used in this context, encompasses cabinetry, lights, electrical outlets, sinks, showers, and tubs.
- What portions of the plumbing, electrical, heating and air conditioning systems are part of the unit: all elements that serve only the unit, or only elements visible from within the unit?
- Does the unit include any decks, balconies, or patios, and if so, how does the definition describe the boundaries of these areas? Note that even if the unit does not include these areas, they may be assigned as exclusive use common area as discussed below.
What portions of a planned development are individually owned?
In a planned development, the individually owned area is called the lot and typically consists of a piece of land and everything on it. The exact physical location of each lot within a particular project is shown on the recorded map for that project. Where there are walls or fences that sit on the border of two lots, ownership is considered to be shared unless the CC&Rs provide otherwise. Note that the map and/or CC&Rs for planned developments sometimes give neighbors and even the general public the right to cross a private lot (a type of “easement”). For additional information, see Civil Code §1351.
Who owns the common area?
Title to common area can be held by the homeowners association or by the owners in percentage shares as “tenants in common”. The decision is made by the developer at the time the governing documents are prepared, and is very difficult to change later. To determine who owns the common area in an association, refer to the CC&Rs. The method of common area ownership has no significant consequences in a properly insured association. Note that in condominium projects, title to at least some common area must be held as tenants in common. The percentage held by each owner does not determine that owner’s usage rights or cost responsibility. For additional information, see Civil Code §§1351 and 1362.
What is exclusive use common area and restricted common area?
The terms “exclusive use common area” and “restricted common area” are used interchangeably. They refer to portions of a condominium project or planned development that are not within the defined boundaries of a unit or lot, but are intended to be used exclusively by one owner. Technically, exclusive use or restricted common area is part of the common area owned either by the homeowners association or by all of the owners, but one particular owner holds a type of easement which gives him/her exclusive usage rights. The easement is permanent, and cannot be taken away by the association or by the other owners. Decks, patios, parking spaces, and storage spaces are often assigned as exclusive use or restricted common area on the recorded plan or map, in the CC&Rs, or in the deed conveying the lot or unit to its first owner. The law automatically assigns all elements designed to serve only one particular unit or lot as exclusive use common area, but the automatic assignments operate only if they do not conflict with the governing documents. For additional information, see Civil Code §1351.
What do the terms “percentage interest” and “common interest” mean?
The terms “percentage interest” and “common interest” are used only when the common area is jointly owned by the individual owners (rather than by the association). In these cases, terms “percentage interest” and “common interest” refer to the percentage share of common area owned by a particular owner. An owner’s “percentage interest” or “common interest” does not determine that owner’s usage rights or cost responsibilities.
What is a “party wall” in a planned development?
The term “party wall” in a planned development usually means a wall, fence, or other building element that sits on the border of two or more lots. Sometimes the CC&Rs will define “party wall” more broadly so that it includes any building element that is within a prescribed distance of the lot border. Where party walls exist, the CC&Rs will usually allocate responsibility for maintenance, impose restrictions on alterations, and provide access rights for maintenance. When the CC&Rs are silent on any of these issues, general rules of law apply. These laws are complex and beyond the scope of the Condominium Bluebook. For additional information, consult an attorney.
Partition and Combination
What does the term “partition” mean?
When used in a legal context in connection with jointly owned real estate, the term “partition” refers to a court-supervised process where the jointly owned real estate is sold and the proceeds divided among the owners. Contrary to common usage, partition never involves a physical division of one parcel of real estate into multiple parcels. Partition is the law’s remedy when changed circumstances or disagreements prevent co-owners from jointly managing their shared property, and in most joint ownership arrangements, any owner can force a partition at any time. But although the common areas of condominiums and planned developments are often jointly owned, the law prohibits partition unless the project has become substantially damaged or obsolete. For additional information, see Civil Code §1359.
Can an owner in a condominium or planned development split off a home from the complex and sell it free of the homeowners association and the restrictions in the governing documents?
By the time a condominium or planned development home is sold, documents have been recorded with the county government which firmly bind it to the rest of the project. A condominium unit in a multi-unit, vertically-stacked building can never be split off, but if the building is substantially damaged the law and the governing documents sometimes allow the entire project to be sold and the proceeds divided. A condominium or planned development home located in a structure containing no other homes, or attached to other homes on a horizontal plane, can be split off, but only with the approval county government as well as the percentage of owners and lenders required by the governing documents.
Can individual elements of a unit or lot, such as a particular room, be sold to or exchanged with another owner?
The boundaries of units and lots within a condominium project or planned development appear on the recorded map or plan, and cannot be changed without amending that map or plan. The amendment must be prepared by a licensed surveyor. If the map or plan to be amended is recorded separately from the CC&Rs, the amendment must be reviewed by a governmental agency, signed by all owners and all lenders with an interest in the project, and recorded. The signature requirement is especially difficult to fulfill because it requires the cooperation of every lender that has a mortgage on any of the units or lots in the complex (including those not directly affected by the amendment), and lenders are generally not anxious to cooperate in this process. If the map or plan to be amended is recorded only as an exhibit to the CC&Rs, the amendment will need to be approved only by the percentage of owners required by the CC&Rs, and the lenders with mortgages on the directly affected units or lots. The approval of other lenders, and of a governmental agency, is required only if the CC&Rs so state. For additional information, see Government Code §§66469 et. seq.
Can exclusive use or restricted common areas, such as parking spaces or storage spaces, be sold to or exchanged with another owner?
If the exclusive use or restricted common area is assigned to a particular unit or lot on a map or plan recorded separately from the CC&Rs, the sale or exchange would require an amendment of the map or plan as described in the previous answer. If the exclusive use or restricted common area is assigned to a particular unit or lot only in the CC&Rs and/or the initial deed conveying the unit or lot, and is not assigned on the map or plan, the sale or exchange will require an amendment to the CC&Rs and/or a new deed. In these cases, the owners directly involved with the sale or exchange will need the approval and cooperation of their mortgage lenders. The CC&Rs may also require approval and cooperation of some or all of the other owners and their mortgage lenders.
If an owner owns two units or lots, can he/she combine them into one?
The ability of an owner to physically combine units or lots (i.e. join them together with doorways, stairs etc.) will be determined by the alteration provisions of the CC&Rs and the local building and planning codes. In most cases, the owner will need to get association approval for these types of physical alterations as well as a building permit from a governmental agency. The ability of an owner to legally combine units or lots (i.e. make them into a single unit or lot) will be determined by specific CC&R provisions relating to unit or lot combination or changing boundaries. Even if the CC&R requirements can be satisfied, combination will require an amendment to the map or plan as described above in connection with the sale or exchange of a portion of a unit or lot.
Must an owner provide the HOA with access to his/her home?
Most CC&Rs state that the homeowners association has the right to enter any unit or lot whenever necessary to fulfill the association’s duties. Among the duties that would justify entry is common area maintenance, and verification of an owner’s compliance with owner maintenance requirements and alteration restrictions, and pet rules. Often, the CC&Rs will require that the association provide advance notice of the entry except in an emergency. When the CC&Rs are silent on these issues, both the right of entry, and the requirement for advance notice, would be implied.
Under what circumstances can an owner gain access to a neighbor’s property to make repairs or improvements to his/her own property?
Most CC&Rs state that each owner has the right to enter a neighbor’s unit or lot, and all common area, whenever such entry is necessary to maintain the owner’s unit or lot, and provided advance notice is given or there is an emergency. When the CC&Rs are silent on the issue, the entry right would be implied. The right does not exist when the purpose is to facilitate owner alterations or improvements rather than necessary maintenance.
Use of Common Area
Is each owner entitled to use the common area, regardless of his/her ownership and assessment percentage?
Each owner in a condominium project or planned development is equally entitled to use all common area (other than exclusive use or restricted common area) regardless of ownership or assessment percentage.
Are an owner’s guests and tenants allowed to use common area recreational facilities?
An owner’s guests and tenants have the same common area usage rights as the owner unless the governing documents specifically provide otherwise.
Under what circumstances can the HOA can refuse to allow an owner access to recreational facilities?
A homeowners association may charge fees for the use of recreational facilities and refuse access without payment, provided the charge applies equally to all owners and is not specifically prohibited by the governing documents. Such fees can be initiated and adjusted by the board unless the governing documents specifically require an owner vote.
The association may also temporarily remove an owner’s recreational facilities usage privileges as discipline for a violation of the governing documents. This type of discipline is permitted only if (i) the governing documents do not specifically prohibit it, (ii) the board has adopted the discipline policy in advance, (iii) notice of the policy has been provided to all of the owners in advance, and (iv) the violating owner is given notice of the violation and a board hearing before the recreational facilities usage privileges are removed.
If an owner has rented out his/her home and does not live within the complex, can he/she still use the recreational facilities?
If there is no provision in any of the governing documents prohibiting a non-resident owner from using the recreational facilities while his/her unit or lot is rented, he/she may continue to use them. If there is such a provision, the law is currently unclear as to whether the prohibition can be enforced. For additional information, see Liebler v. Point Loma Tennis Club (1995) 40 Cal.App.4th 1600, 47 Cal.Rptr.2d 783 (enforcing a restriction), and MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 9 Cal.Rptr.2d 237 (invalidating a restriction).
Can there be any restrictions on an owner’s right to rent his/her home?
Rental restrictions in governing documents are legal provided they are uniformly applied to all owners, do not discriminate against particular group of potential renters, and can be shown to serve some legitimate purpose. Note that rental restrictions may affect the owners’ ability to obtain mortgage loans from some lenders. For additional information, see City of Oceanside v. McKenna (1989) 215 Cal.App.3d 1420, 264 Cal.Rptr. 275.
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