Dear Kelly:

My association has taken the stand that a side fence on a zero lot line single family dwelling that is entirely on the dwelling’s property is shared 50/50 with the neighbor for maintenance or replacement costs. In my opinion, this is totally incorrect that a neighboring property owner would be responsible for a fence that is entirely on a neighbor’s property. Have you ever seen this with other zero lot line HOAs? Thanks, R.M., Placentia

Dear R.M.: For the readers’ benefit, let me explain “zero lot line.” This normally means the buildings are built onto at least one of the property boundaries. There are two major items which can affect the responsibility for a shared fence. I am assuming that your HOA is a planned development and that the fences between neighboring yards are not located in common area. The CC&Rs might address responsibility for shared fences, or otherwise the board may want to consider proposing an amendment to clarify that subject. There is also Civil Code Section 841, California’s “Good Neighbor Fence Act of 2013” which took effect in 2014. Under that law, fences dividing adjacent properties are the shared responsibility of the two neighbors.

Hoping this is helpful, Kelly

Dear Mr. Richardson: I have a question regarding property ownership.  Our condominium complex consists of free-standing houses each with a yard or patio yard.  Our condominium plan has a map with boundaries that include the unit with the front yards/patios along with a description that a unit consists of the dwelling, garage and private yard areas encompassed by the unit boundary line shown on the plan.  This might conflict with other language in the CCR’s.

This is coming up regarding a project in which one owner is of the opinion that based on the tract map the yard is his own private yard area and he owns it.  It is my opinion that this is a condominium and that he doesn’t own the land but is exclusive use common area with input on the project by the HOA.

Thank you for any direction you can provide. R.A., Lawndale

Dear R.A.: The condominium you describe is exactly like a planned development except for being called a condominium. This style of HOA is an increasingly common way for developers to avoid the various zoning requirements which otherwise would apply to a planned development projects and lots. So, for example, lot sizes and setbacks can be smaller. I refer to those as “lot line condominiums,” since the boundary of the unit as defined in the condominium plan is exactly the same as a normal planned development lot, with property lines – except it is called a “unit.”

Your HOA should consult an experienced real estate or HOA attorney to confirm exactly what is “unit” and what is “common area,” in order to prevent future confusion and disputes. 

Your experience illustrates the importance of that often-overlooked document, the condominium plan. Its map and “notes and definitions” section are often very important in clarifying the property rights which are separately owned (“unit”) and shared (“common area”). The condominium plan is filed with your county Registrar-Recorder and so is public and easily retrievable through your HOA legal counsel or a title company.

Sincerely, Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

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