An “exclusive use common area” is defined as a common area that an owner has the exclusive right to use. Common examples of such a space include balconies, patios and parking spaces. Dating back to the Davis-Stirling Act of 1985, this has been a topic of disagreement for some associations, owners and attorneys. Specifically the responsibility of repair and replacement of such areas has been called into question. To understand why there has been such debate, lets take a look at the current legislation.

Civil Code Section 4775 currently states that “unless otherwise provided in the CC&Rs, a community association is responsible for repairing, replacing, or maintaining the common area, other than exclusive use common area. The homeowner of each separate interest is responsible for maintaining their separate interest (their unit or home) and any exclusive use appurtenant (attached or next to) their separate interest.”

So we can see right away that responsibility of maintenance, repair and replacement falls squarely on the associations shoulders. But, it goes on to exclude exclusive common areas, for which owners are responsible for maintenance. Here’s the problem… what about repairs and replacement? It stands to reason that, since not specifically mentioned, this responsibility defaults back to the common area definition. Most industry experts have subscribed to this line of thinking, which places responsibility of maintenance with the owner but repair and replacement with the association.

This new legislation states, once and for all, that the association is responsible for repairing and/or replacing the exclusive use common area.

Over the years, many managers, board members and even attorneys have come up with their own interpretations and have assigned responsibility to homeowners. It goes without saying that they were not happy to see this new legislation, which is sure to create more obligations for the associations. This is why the new legislation will not go into effect until January 1. This will allow such associations to get themselves and their owners ready for this change.

On January 1, 2015, AB 2561 added Section 1940.10 and 4750 to the Civil Code. What’s important to know is that Section 4750 grants homeowners in HOAs the right to utilize their backyards for “personal agriculture.” More importantly, this right supersedes any provisions in a HOA’s governing documents that restrict or prohibit such use.

But, don’t worry. As an HOA, you still have some authority to restrict and regulate personal food gardens.

Let’s take a look:

1) Personal Use/Donation Only – The yield must be for personal consumption or donation. Anything being grown for commercial purposes can be lawfully prohibited.

2) The same goes for Marijuana or other unlawful substances – These do not fall within the definition of “plant crop” and as such can be prohibited entirely.

3) The crops can only be grown on the owners property and may be prohibited in common areas.

4) You may impose “reasonable restrictions” on the use/maintenance of homeowner’s yard for personal agriculture. as long as they “do not significantly increase the cost of engaging in personal agriculture or significantly decrease its efficiency.”

5) Section 4750 does allow you to require that “dead plant material and weeds, with the exception of straw, mulch, compost and other organic materials that encourage vegetation and soil moisture retention, be regularly cleared from the backyard”.

Homeowners now have more rights when it comes to personal agriculture but, as an HOA, you still have the ability to ensure that it’s done responsibly, without degrading property values.