Granting Exclusive Use Easements to Members
An easement is a right to use another person's land for a specified purpose. Easements are often found in CC&Rs giving members the right to use roads in a development or to access lots for the purpose of running utilities.
Unless an association's governing documents specify a different percentage, granting an owner exclusive use of any portion of the common area requires the approval of 67% of the membership. When presenting the proposal for a vote, the board must specify (1) whether the association will receive any monetary consideration for the grant and (2) whether the association or the transferee will be responsible for providing insurance coverage for the exclusive use of the common area.
If a board grants exclusive use without membership approval (and none of the exceptions apply), members may bring an action in court to reverse the approval. Members have one year to bring such action. If the owner is successful, penalties and attorneys fees may be awarded to the plaintiff.
There are a limited number of exceptions to the requirement set forth above. Unless the governing documents provide otherwise, the board may grant an exclusive easement without membership approval for any of the following reasons:
- 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.
- To accommodate a disability.
- To eliminate or correct engineering errors in documents recorded with the county recorder or on file with a public agency or utility company.
- To eliminate or correct encroachments due to errors in construction of any improvements.
- To fulfill the requirement of a public agency.
- To assign a parking space, storage unit, or other amenity, that designated in the declaration for assignment, but is not assigned by the declaration to a specific separate interest.
- To install and use an electric vehicle charging station in an owner's garage or a designated parking space where the installation or use of the charging station requires reasonable access through, or across, the common area for utility lines or meters.
- To install and use an electric vehicle charging station through a license granted by an association.
Any request for exclusive use of any portion of the common area must be included in the board's posted open meeting agenda so the membership is on notice of the request. Any discussion and vote by the board should be done in an open meeting. Before granting any approvals, the board should make a finding, which is then recorded in the minutes, that one of the exceptions set forth above applies and the facts supporting the finding.
If the board or the membership votes to permit an owner to be granted exclusive use of a portion of the common area, the approval should be conditional on the owner signing a recordable agreement obligating the owner to insure and maintain the property. This will put all future owners on notice of their obligation. The board should also include an indemnity provision in the agreement.
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