Exclusive Common Areas – New legislation taking effect on Jan.1, 2017

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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.

Personal Agriculture and Your HOA

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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.

Effective January 1, 2015, There is a New Law Impacting the Installation of Solar Energy Systems

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Under Civil Code Section 714, a Homeowners Associations in California can legally restrict an owner’s installation and use of solar energy systems – so long as the restrictions do not significantly increase the cost of the system or significantly decrease its specified performance or efficiency. Until December 31st of 2014, “Significantly” was defined as increasing the costs of the system by 20% or decreasing the efficiency of the system by 20%.

AB 2188, which became effective January 1, 2015, redefines what reasonable restrictions an Association is allowed to require and, in doing so, amends Civil Code Section 714.

Most importantly, the new law reduced an HOA’s ability to restrict solar energy systems installed by members in half.

A significant increase in the costs of a system is now anything north of 10%, and a significant decrease will now mean a reduction in the efficiency of the system by 10%.

The result – HOAs must now be even more careful with the conditions and/or limitations it places on owners who wants to install solar energy systems.

The new law also calls for a reduction in the time frame an association has to approve or deny an application for the installation of solar systems. Before, the law stated that if an application is not denied in writing within 60 days of the submission by the member, the application will be deemed automatically approved. Now, the time period has been reduced to 45 days. As a result, HOAs must be even more diligent in their review and consideration of applications for new solar energy systems.

Be sure to keep these changes in mind the next time an owner in your association is considering the installation of a solar energy system!

Barrera now offers specialized services

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Engineering-based reserve studies now offered by Barrera.  Have you ever wondered what happens when ‘Life of Project” components are no longer lasting the life of the project?  Well now we can help you answer these questions and put more certainty into your forecasts and budgets.  We are proud to announce expertise in the areas of mechanical engineering, civil and structural engineering, and building envelope analysis.