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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
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
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
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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