‘Common Area’ Term Needs a Lawyer’s Look

QUESTION: There are several condominium units on the perimeter of our building that have concrete patios. Is the concrete slab considered “common area”?

The association’s attorney stated, “The patio is not part of your unit, but rather is considered exclusive use common area. Even if it were part of your unit, the surface area would be common area and, as such, is under the direct control of the association.” Is he correct?

ANSWER: This is a legal question, so you’ve come to the wrong place for a second opinion. First, I’m not an attorney. Second, I don’t have your legal documents. The source of your answer lies in the condominium plan, the declaration and the California Civil Code. The condominium plan often delineates common area and “separate interest” (unit) in very specific terms. Presumably, the attorney reviewed all of the documents and the Civil Code prior to rendering his opinion.

If you want another opinion, seek an attorney who focuses his or her practice in the area of community associations. Check with your local bar association. Attorneys who are affiliated with the Community Assns. Institute can provide a relatively quick answer to this type of question.

Surcharge for Absentee Owner Might Be Illegal Q: Our 31-unit association is having some tenant problems. Seven of the 31 units are rented. One of the owners rents his unit like a motel, with tenants coming and going all the time. We fear that lenders will not finance mortgages for our building if the percentage of rentals gets much higher.

I think the association should charge the absentee owners an extra $50 a month besides their regular monthly assessment. One of the board members thinks this might be illegal, but the covenants, conditions and restrictions do not address this topic.

We would like your advice.

A: If you read your governing documents thoroughly, you will probably find that the association’s expenses are to be shared in a prescribed equitable manner by all owners.

Each year when the budget is approved, the board sets the assessment for each unit based on the requirements in the governing documents. As an individual owner, you are required to pay your fair share of the common expenses. Typically, your assessment is based on either the percentage of your ownership or the square footage of your unit.

I am not an attorney, so I urge you to discuss these legal issues with an attorney who is versed in condominium law. In my opinion, you cannot levy an arbitrary surcharge on absentee owners unless the governing documents give the board the authority to do so.

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Hickenbottom is a past president of the Greater Los Angeles chapter of the Community Assns. Institute (CAI), a national nonprofit research and educational organization. She welcomes readers’ questions, but cannot answer them individually. Readers with questions or comments can write to her in care of “Condo Q&A;,” Box 5068, Thousand Oaks, CA 91360.