Intro to HOA Common Areas

One of the most important possible liabilities that HOA’s face from their members is commonly associated with the use of HOA common areas; therefore, it is important to understand what common areas are. The above referenced HOA information guide notes that it is "common knowledge" that common areas are the sociable grounds enjoyed by the members. But what exactly constitutes that common area? California HOAs may use different terms for their common areas but the statute and the regulations refer to them as "common area." Civil Code § 4095(a). Section 4095(a) provides: "Common area" means the entire common interest development except the separate interests therein, and includes but is not limited to streets, roadways, trails, sidewalks, parking lots, parks, private streets, recreation areas, common buildings, swimming pools, lakes, ponds, waterways, drainage facilities, detention basins, and other similar areas and any easements, interests, licenses, rights, and privileges available for common use or enjoyment by the members of a common interest development or maintained by the association."
California Associations commonly use the following provisions in their governing documents to address their common areas: "Common Area and Facilities – All of the real property in the project delineated on the Final Association Plans, as the same may be from time to time modified by the Association without the consent of purchasers and their mortgagees, will be the property of the Association and the members in accordance with their respective interests therein and will be subject to a duly recorded covenant for maintenance in a manner consistent with the Project’s purpose and capital repairs. The Association may delegate the maintenance responsibility to a fee manager but such management shall not relieve the Association from its legal responsibilities hereunder."
"Common Facilities and Common Areas – All references to "Common Area" and "Common Facilities" herein shall refer to all of the real property, exclusive of Lots, which by Declarant or its assignee is designated for the common use and enjoyment of the Owners and their tenants in common with each other. The Common Facilities, together with all improvements , landscaping, landscaping maintenance and equipment located thereon, shall be maintained for the common use and enjoyment of Owners and their tenants , at the expense of the Association, except that Owners of each Lot whose Lot is adjacent to any Common Facilities in any way, shall be responsible for maintaining the area adjacent to their Lots lying between their Lot and such Common Facilities, except for any items which the Association is specifically obligated in this Declaration to maintain."
"The common facilities, including those spaces, structures, and facilities provided by the developer as shown by the recorded final map and including all parking spaces therein."
"Common Facilities – The common facilities shall be so constructed and maintained at the expense of the association that they comply with all applicable laws, ordinances, regulations and requirements of any governmental authority having jurisdiction."
"Common Elements and Facilities – Common Elements and Facilities shall mean: all real and personal Property of which members have a right of enjoyment in common."
"Common Areas – Common Areas means those portions of the Property (including surfaces and sub-surfaces) which are not within individual Units but which are within the Project and not within another development to which Declarant has assigned such land, which may be reasonably used in common by Owners, residents, and their visitors and invitees of any development governed by this Declaration, and which are now or later made a Part of the Project as defined in the Grant Deed. Common Areas are depicted on the Plat, subject to modification as provided herein."
"General Common Elements – General Common Elements include the earth, water, plants, and fixtures, if any, within the Property, outside of the individual Units and including the Paved Lanes and the pipes, conduits, wires and ducts located in the Paved Lanes or in or under any areas of the Property."
"Limited Common Areas – Limited Common Areas include all patios, balconies, terraces, steps and entries; all storage, laundry, trash collection and other areas adjacent or proximate to any such Unit; and any appurtenances thereto. A Limited Common Area is assigned as part of the assessment of a Unit; shall be for the sole use, benefit and enjoyment of the Owner of the Unit to which it is so assigned, and shall be maintained by the Owner of said Unit. No Owner shall obstruct or reduce the extent of any Limited Common Area appurtenant to another Unit, and no Limited Common Area shall be enclosed in any way."

Legalities Behind HOAs

In California, homeowners associations (HOAs) bear legal responsibility for the upkeep and management of common areas within their communities. The governing documents of a community, typically in the form of a CC&Rs (Covenants, Conditions, and Restrictions), set forth these responsibilities and the expectations to which HOAs must adhere under California law.
CC&Rs, which are binding on both the association and its members, outline these responsibilities in explicit detail—such as what must be done to common areas and when. They also stipulate the manner and means by which association funds may be spent. For instance, an HOA board may be required to retain an independent contractor to manage common areas even if board members are well versed in carpentry or landscaping.
California Civil Code section 4775 provides that "Common area shall be available for the use and enjoyment of all the owners of separate interests in the common area…subject to restrictions and requirements set forth in the governing documents…." In other words, an individual owner may not take it upon themselves to enter a common area (such as a pool or spa) unilaterally or use it for their own purposes (such as using the pool area for hosting a wedding). The board has a legal duty that mandates compliance with the CC&Rs and other governing documents.
Further down, Section (e) of the same civil code as referenced above, states that "[t]he common area shall be kept in reasonable condition and repair. Repairs, maintenance and replacement may include…setting aside reserve funds for the periodic replacement…of…items…
The code section is clear in its directions that the board of directors of the HOA is responsible for maintaining and enforcing the legal obligations for the benefit of the entire membership of the HOA. Failure to do so can lead to significant liability to homeowners.

Common Areas and Homeowner Rights

Under California’s Davis-Stirling Act, homeowners have the right to access and use common area facilities. "While the board may control the common area for the benefit of all homeowners, each homeowner has the right to access and use the common area subject to reasonable regulations consistent with the [association’s governing documents] and the rights of the other members."
Homeowners need access to common areas in order to enjoy their properties in accordance with the open space, design, recreational and other amenities contemplated by the developer when establishing the association. For example, many homeowners expect the swimming pool, spa, gym or other unique amenities to be available for their personal use. The right of access and use of common areas with the homeowners’ family and guests are expected unless the association’s governing documents limit or withdraw those rights. California law permits an association to adopt and enforce reasonable rules and regulations for the use of the common area. If particular common areas or facilities are restricted for a specific purpose, such as a swimming pool or children’s play area, associations may limit use expressly to that designated purpose and exclude other uses. A common area may have specific, limited uses. This means that, if the common area is restricted to a certain use, homeowners cannot use the common area in ways that detract from the specific use.

Common Areas Fees and Assessments

HOAs typically charge a monthly fee to the owners for the maintenance of the common areas of the development. The fees charged by HOAs are governed by the Davis-Stirling Common Interest Development Act ("DsCIDA"). In a nutshell, in California at the outset HOAs have a budget to operate the community. This budget is covered by assessments to the owners. Each owner pays a portion of the budget based on the size of the unit that is owned (i.e. a single family home will pay an assessment that is different than the assessments paid by owners of condos within the HOA).
The owner balances his or her share of the budget against the value of the common area and the obligations the owner has pursuant to the rules of the HOA . As can be seen, the payment of assessments give the owner a sense of ownership over the common area while creating the obligation to care for the common area in accordance with the requirements of the HOA rules.
While it may seem simple for a new HOA to determine what assessments each owner must pay, establishing a budget is definitely complicated. Each year, the board must adopt a budget and follow proper procedure set forth in DsCIDA in order to accept the budget. Once a budget is adopted, the board still must make adjustments to the budget throughout the year depending on the actual costs incurred by the HOA.
The budget is part of the HOA bylaws in that the bylaws will specify the responsibilities of the HOA to maintain, repair and, in some instances, enhance the common area.

HOA Disputes Involving Common Areas

Even within the structured setting of an HOA, there is often conflict with regard to common areas. Parties may have different opinions about what actions should be taken to maintain elements on the common areas, how funds budgeted for the common areas should be spent, and how responsibility is divided between the association and the homeowners for upkeep. Regular maintenance can lead to disagreements over which party should be responsible for carrying out the work, or whether certain improvements to common areas are necessary, and if needed, who should pay for them.
In California, civil actions can be brought against homeowners or HOAs by other homeowners and by HOAs against their own homeowners. Civil actions can also be filed with the Department of Real Estate, California’s Bureau of Real Estate. It is not uncommon for civil disputes involving HOA common area to end up as disputes before the Department of Real Estate, often at the behest of the dissenting HOA member who believes that the HOA is not doing its job. Some common issues that can end up before the Department of Real Estate include: a non-compliant member seeking clarification and enforcement of the CC&Rs, a member seeking access to the records of the association, a member seeking reconsideration of an assessment, challenges to the legality of a board cab vote, and challenges to contractor bid proposals.
In order to file a lawsuit against another homeowner and/or an HOA, the complaining party must first comply with the pre-litigation procedures set forth in California Code of Civil Procedure section 1369.510. This section is intended to expedite claims and help parties move towards a resolution outside of litigation (i.e. through discussion, mediation, etc.). Similar steps must be taken when filing a complaint with the Department of Real Estate.

Recent Law Changes for HOAs

While changes to California law in the time period since the 1990s have been less pronounced, a handful of significant additions and amendments to California statutes impact not only the lives of homeowners but that of homeowners associations as well. Understanding them can help both consumers and trade professionals navigate the common areas of the state between the beach and the Oregon border.
The most significant change to California law as it pertains to HOAs has been the passage of the Davis-Stirling Common Interest Development Act (CIV 4000-6150), which provides governing statutes for HOAs.
California legislators initially passed Davis-Stirling in 1985. In 1994, the state senate enacted SB 147, which added to the legislation and code. The bill was authored by state assemblyman Paul Stirling, the son of real estate trading professional, realtor and developer J. Norby Stirling, who founded the first HOA management company in California in 1972.
The legislation consists of 132 sections that describe the powers and obligations of HOAs, including provisions pertaining to disclosures, board meetings and elections, member voting and financial statements . Although the original act divided the law violations into 16 sections, subsequent revisions to the Act have added four additional sections. Collectively, the laws are one of two principal codes regulating HOAs in California (the other being the Corporations Code).
In 2005, the state senate adopted SB 1766, which amended Davis-Stirling to provide oversight of HOA architectural review committees through the state Department of Consumer Affairs’ Contractors’ State License Board. The law requires the board of directors to obtain written consent from the majority of homeowners before sitting on the board of the committee.
In 2012, the California legislature signed the Davis-Stirling Technical Clean-up Act (SB 300), which amended many sections of the original Davis-Stirling Act. The full number of revisions totals over 200.
In 2005, the California legislature passed the Civility Counts Act, a law that aims to quell violence and aggressive behavior during HOA board meetings. Included are policies that classify aggressive conduct as unlawful. If the law is broken, victims may seek civil action against the offending parties.