Dear Mr. Richardson,

Many years ago, I was allowed by the board to raise the height of my deck. I paid for the architectural change. No board member or manager since has ever inquired about it. Most people don’t even see the change. Do I have legal standing to keep my patio the way it is or at some time could I be forced to put it back the way it was originally built?

J.H., Huntington Beach

Dear J.H.,

When you modify an exclusive use common area, it is still not owned by you. Common areas are normally defined by a recorded plan or map. I am assuming from your question that you have no documentation proving the modification was approved. If you cannot prove the alteration was with HOA permission, the HOA might deny that the alteration was approved. If the association decided for some reason to renege on the permission, it might have to pay for the revision and possibly reimburse you for the original modification expense.

Your situation illustrates why it is a good idea for both HOA and homeowner to document approved changes to an exclusive use common area, in a written agreement signed by the homeowner and the HOA. With a written agreement in hand, you would be able to prove you had permission. Such agreements are also helpful to the HOA because they can document the homeowner’s agreement to be responsible for the changed item’s maintenance and repair. To make sure that future owners of the lot or unit are notified of this agreement, the agreement can be filed with the County Registrar/Recorder.

Perhaps it is not too late to have such an agreement signed now, to avoid future disagreements.

Hoping this helps,


My condominium CC&R’s allow the board to, with advance notice, enter an exclusive use common area to remove unapproved additions. We have a situation where a person built a very unsightly alteration to a patio. The board has demanded the unapproved addition numerous times to be removed without any results and imposed fines which have not been paid. Have your heard of a board going in with the required notice and removing the unapproved addition?

J.F., San Diego

Dear J.F.,

Many homeowners are not aware that while an exclusive use common area is set aside for their sole use it is still common area under association control and permission is required to make changes. The association should bring this question to its lawyer for advice about the specific situation. Even if the lawyer approves the HOA removing the addition, if there is a risk of physical confrontation or if a vendor is not be comfortable doing the work, it might be necessary to seek a court order. However, since the modification already is in place, it appears there is no immediate urgency, so perhaps an invitation to mediation might result in some agreement.

Before taking the expensive and stressful path of legal action, make sure the board has exhausted all other methods of gaining cooperation and compliance. Common interest community living, to work well, requires all neighbors to give up a little independence and cooperate with their neighbors. When all else fails, the attorney option is always there.


Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Principal of Richardson|Ober PC.

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