My home? My Tree? My Patio?

Living in a condo is quite a difference from a single-family home. Suddenly, there may be confusion about what is “yours” (the homeowner) and what is “ours” (under the control of the condo association), and misunderstandings can erupt. The good news is that the definitions are very clear and precise: they are specifically outlined in both the governing documents (CC&Rs, ByLaws and Rules & Regs) and in California state law. Let’s clear up the confusion.

What you own in a condo is not the building or even the walls, but the airspace inside the unit. If you could pick up the unit and turn it over and shake it vigorously, what is yours is largely only what falls out. It’s your furniture, appliances, window coverings, carpet and pictures on the wall. But the walls and concrete slab and roof actually belong to the association–which is ALL of the homeowners together (the “commons)–managed by the elected board of directors and the management company. This is why there are restrictions on what can and cannot be done with these association-owned elements, even if the CC&Rs direct the homeowners to maintain some of these elements.

You hear the words “common area” used all the time, and most think common area (owned by the commons) deals with only the roads, sidewalks, lawns and landscaping. Well, that’s part of it, and those are indeed controlled and maintained by the association. Individual homeowners cannot plant on or improve these areas. And in fact, trees in the common area belong to all of us, and specifically NOT to the homeowner who happens to live adjacent to the a particular tree. (So it’s not “your” grapefruit!)

But common area also refers to the structure of your unit and your patios and courtyards. These are owned by the commons, not by you. However, that doesn’t mean that your neighbors can camp out on your patio! These areas are specifically designated for your exclusive use (“Exclusive Use Common Area”), and you have maintenance responsibility for some of these elements. Your CC&Rs and Maintenance Matrix declare exactly what is for your exclusive use, what is your responsibility and what is that of the association. And all of this has the solid teeth of California state law and its Davis-Stirling Act.

You may furnish and decorate your patios and courtyards to your liking, as long as there are no structural changes, items that potentially weaken the structure, or blight. Structural changes such as walls may be done, but only after providing specific written plans and obtaining a variance request approval by the board of directors. The board considers a variety of factors in approving or denying such a request, from the practical to the aesthetic.

Extending your patios into the non-exclusive common area requires a much higher standard for the variance request; with very limited exceptions (stated in state law). Such an extension must be approved by the board of directors then further approved by 2/3 of the voting membership of the homeowners. This is not a lightly taken decision, as it amounts to “taking away” some use from the commons and benefitting a single homeowner. And therefore, the state raises the bar very high–to the whole of the association–for such an important decision. The board makes sure that–after its approval is given–that the balloting process is followed according to law and governing documents.

While all of this seems chaotic, there are solid reasons why the condominium and common area concepts have prevailed for so long. The homeowner gives up some control in some areas so that maintenance is shared, design and aesthetics are consistent and coherent, and economies of scale and cost reductions are obtained. For instance, instead of 62 different gardeners working on 62 fronts and backs of units (such as with many gated housing developments where there is little common area), one company handles all of it. One entity handles all the pools and spas. One insurance company covers all the building structures and grounds.

Homeowners are largely free from making decisions about landscaping, exterior painting, concrete paths, pools and spas, lighting and exterior design, and those costs are shared equally among the commons. You can just enjoy those benefits without worry (the association just needs your check monthly to provide these). Those who are passionate about participating in and directing these items should run for the board or apply to be appointed to an appropriate committee.

Compare this all to the time and cost of maintaining a house, and hopefully you will see the great benefits to condo ownership and the idea of common area.

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