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In response to: Legality of exclusive use policy is debated

Clarifying the exclusive use law and my position

A few points of clarification of my role and stance regarding the exclusive use common area (EUCA) law.

I did not promote the enactment this particular code section which restricts grants of EUCA, as reported. I became involved in lobbying in favor of the parent bill, AB1098, when its sole purposes were expansion of members' rights to review association records, and the recently enacted election process reforms which were eventually clipped out and moved to another bill before AB1098 was passed. The exclusive use restrictions were the author's own idea after hearing EUCA horror stories from another CID, and he added that code section on that separate subject into the bill very late in the process. In a negotiation I attended with lobbyists for the consumer and industry groups I distanced myself from that part of the bill and made clear that my mission in being there was to protect the records access provisions of the bill from an attempt by the industry to gut those consumer protections and keep your nose out of your association's business. Surprisingly the industry was also so focused on the records provisions they didn't make any real effort to talk him, or the rest of the Legislature, out of the EUCA provisions.

I do not see that code section as threatening any existing exclusive uses created prior to the bill becoming effective
on 1/1/06, including routine renewals for new owners of homes with existing pre-1/1/06 EUCA leases. My concern is that the law clearly requires that most new EUCA grants after 1/1/06 which take additional open space land away from the general membership for the first time must be approved by a vote of the membership, and that RMA risks a real legal mess if we keep pretending the law doesn't apply to us just because our CC&Rs say the board can give away open space common area. The very purpose of the law is to transfer that decision-making power from boards to the members, and it was enacted in response to the behaviors of boards who ostensibly had, like ours, legal powers to transfer EUCA. The law isn't about EUCAs which were already illegal for lack of any board powers. Its purpose is to limit existing, legitimate board powers by giving the membership a direct say in what lands are taken away from them.

The new law, Civil Code section 1363.07, says "...unless the association's governing documents specify a different percentage, the affirmative vote of members owning at least 67 percent of the separate interests in the common interest development shall be required before the board of directors may grant exclusive use of any portion of that common area to any member, except for any of the following:"

It then lists several exceptions. The one which will occasionally apply in RMA is: "To transfer the burden of management and maintenance of any common area that is generally inaccessible and not of general use to the membership at large of the association." "And" means it has to be both.

The problem is, a lot of the open space RMA hands out for exclusive uses is not "generally inaccessible." So that
excuse for not putting those particular EUCAs out for a vote won't work. So, instead, to dodge an admittedly difficult problem, RMA is trying to pretend our CC&Rs provide a "different percentage" because they permit a majority of the board to grant EUCA. That won't cut it in court, because in context that sentence clearly refers to a different percentage of member votes. Read the above quote again.

Despite the pretense this is all mystical and complicated, it's written in pretty plain English. The Legislature is plainly talking about what percentage of member votes it takes to approve one of these.

Right or wrong, that law says what it says. If it causes problems in RMA, and it does, the answer is to take a "time
out" and try to get the law changed, not to try to ignore it, keep doing business as usual, and hope nobody sues, which seems to be the course we've been on for nearly two years now. That's why I've urged that before the law is violated any more times under the dubious claim that we're exempted, this question instead be settled in a low-risk "test case" in small claims court, before a series of six-figure lawsuits erupt over properties in which large sums have been invested in improvements in reliance upon unlawfully granted exclusive uses.

I sympathize with owners of small lots who have been misled by realtors and some previous community leaders into believing they had an absolute "right" to lease land for a pools, landscapes and decks. But that mythical "right" isn't absolute and never was, and now the law has changed and severely limited the board's discretion to keep doing this. RMA has to either get the law changed (as we did successfully re: golf cart crossings) or abide by it, or we're going to get into a real pickle.

-- Wilbur Haines, July 22, 2007

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