Overview
In most California HOAs, common area belongs to the association as a whole and is intended for the benefit of the membership at large. That is why homeowners often react strongly when they see an HOA board allow one owner to fence off a strip of land, extend into a roof area, enclose a patio, control a parking space, or otherwise use part of the common area in a way that appears (or is) exclusive. The natural question is whether the board has the authority to do that without asking the members for approval.
Civil Code 4600 governs when an HOA board may grant a homeowner exclusive use of common area. Unless the governing documents specify a different percentage, the board needs an affirmative member vote from owners holding at least 67% of the separate interests before the board may grant exclusive use of any portion of the common area. That threshold is significant because granting exclusive use can affect property rights, maintenance responsibilities, and the practical use of the development by the membership at large.
Civil Code 4600, however, also contains multiple exceptions where the member vote requirement does not apply. Some exceptions address development-related issues. Others address correcting construction or engineering errors. Another key exception applies when the HOA transfers the burden of management and maintenance of a portion of common area that is generally inaccessible and not of general use to the membership at large. When the facts fit within an exception, the board may have authority to act without putting the matter to a community-wide vote.
This Fact Sheet explains what Civil Code 4600 says, how to think about “exclusive use” in this context, when a member vote is required, when an exception may eliminate that requirement, and how disputes arise over whether an exception applies. If your HOA has allowed one homeowner to control part of the common area, or if you are seeking such an arrangement yourself, understanding how experienced HOA attorneys evaluate Civil Code 4600 is critical before you decide your next move.
If you’d like to watch a “short” from my podcast, HOA HELL, where I briefly raised this topic, click here: “Can My HOA Give a Homeowner Temporary Exclusive Use of the Clubhouse Without a Member Vote?” Also, be sure to read my Fact Sheet, “Does My HOA Need Member Approval to Give Exclusive Use of Common Area?” if you’d like to read more about granting homeowners exclusive use of common areas.
Key Points
Civil Code 4600 sets the default rule and the exceptions that control when an HOA may grant one homeowner exclusive use of common area. The statute is structured in three parts: the voting requirement, the enumerated exceptions, and disclosure requirements when a vote is required. Understanding that structure is critical before assuming a 67% vote (or whatever percentage may be specified in your governing documents) is always necessary.
- Unless the governing documents specify a different percentage, the HOA must receive must obtain approval from at least 67% of the owners before granting exclusive use of common area. Civil Code 4600(a) establishes the default rule. The statute expressly allows the governing documents to require a different approval percentage, but absent such language, 67% is the threshold. Without that approval, the board does not have authority to grant exclusive use of common area to a member.
- “Exclusive use” means one homeowner receives rights over common area that are not shared by the membership at large. Civil Code 4600 is triggered when the board grants one member the right to use, control, or benefit from a portion of common area in a way that excludes others. It does not require or involve a transfer of title. The HOA retains ownership, but the member receives exclusive control or benefit. [In practical terms, the question is whether one homeowner is receiving control or benefit over an area that other members can no longer freely use.]
- The 67% vote requirement does not apply when the grant conforms to an approved phased development plan. The vote requirement does not apply when the exclusive use is consistent with a detailed phased development plan submitted to and approved by the Real Estate Commissioner, or when reconveyance to a subdivider is necessary to continue development consistent with that approved plan.
- The 67% vote requirement does not apply when exclusive use corrects construction or engineering errors. Civil Code 4600(b)(3)(A) and (B) allows HOAs to grant exclusive use without a membership vote to fix engineering mistakes in recorded documents or filings and to address encroachments that resulted from construction errors.
- The vote requirement does not apply when changes are necessary due to development realities or public agency requirements. Civil Code 4600(b)(3)(C) and (D) allow boards to grant exclusive use when site conditions or practical development constraints require adjustments, including topography, obstructions, hardship, aesthetic considerations, or environmental conditions, or when a public agency requirement drives the change.
- The vote requirement does not apply when the board transfers maintenance responsibility for common area that is generally inaccessible and not of general use to the membership at large. Civil Code 4600(b)(3)(E) permits a board to grant exclusive use without a 67% vote when the homeowner assumes the burden of management and maintenance for common area that is not ordinarily accessible and not ordinarily used by the membership as a whole.
- The vote requirement does not apply when exclusive use accommodates disability or assigns certain designated amenities. Civil Code 4600(b)(3)(F) allows exclusive use to accommodate a disability. Civil Code 4600(b)(3)(G) allows assignment of parking spaces, storage units, or other amenities designated in the declaration for assignment but not already assigned to a specific separate interest.
- The vote requirement does not apply for certain electric vehicle charging stations and solar energy systems. Civil Code 4600(b)(3)(H), (I), and (J) allow exclusive use grants related to electric vehicle charging stations and solar energy systems that meet the requirements of Civil Code 4745, 714, 714.1, and, where applicable, Civil Code 4746. If you’re interested in taking a deep dive into your rights to solar power as an HOA member, you can read my article “Can Your HOA Stop You from Going Solar?,” or one of my Fact Sheets, “Can a California HOA Stop You from Installing Solar Panels?,” “HOA Solar Panel Restrictions in California,” or “Can a California HOA Deny Solar Panels on a Condo Roof?”
- The vote requirement does not apply when necessary to comply with governing law. Civil Code 4600(b)(3)(K) allows boards to grant exclusive use of common area without a 67% vote when required to comply with governing law.
- When a vote is required, the measure must disclose financial and insurance implications. Civil Code 4600(c) requires that any measure placed before the members requesting approval for exclusive use must specify whether the association will receive monetary consideration and whether the association or the transferee will be responsible for insurance coverage relating to the exclusive use.
- Disputes often turn on whether the facts truly fit within one of the statutory exceptions. HOAs sometimes assume an exception applies without analyzing the statutory language carefully, and bad HOAs do this on purpose. Homeowners, on the other hand, sometimes assume a 67% vote is always required. This confusion results in a good deal of disputes amongst HOAs and their members.
- Before agreeing to or challenging a grant of exclusive use, evaluate the statute strategically. Exclusive use of common area can affect property values, maintenance obligations, liability exposure, and community dynamics. Whether you are seeking exclusive use or opposing it, analyze whether a vote is required, whether an exception truly applies, and whether the board has followed Civil Code 4600(c). If your HOA is misapplying Civil Code 4600, call the expert HOA lawyers at MBK Chapman, and we’ll set your HOA straight. We’re pros at litigating the proper interpretation of Civil Code 4600.
Civil Code 4600 does not prohibit exclusive use of common area, but it regulates it carefully. The 67% vote requirement is the default rule, not the only rule. The enumerated exceptions matter, and each one must be evaluated based on the specific facts of the situation.
FAQs
Does my HOA always need 67% member approval to give one homeowner exclusive use of common area?
No. Civil Code 4600 sets 67% as the default approval threshold unless the governing documents specify a different percentage. However, the statute also lists multiple exceptions where the board may grant exclusive use without a membership vote. Whether a vote is required depends on the specific facts and whether one of the statutory exceptions applies.
What does “exclusive use” of common area mean?
Exclusive use means a homeowner receives the right to use or control a portion of common area in a way that excludes the rest of the membership. The HOA still owns the common area. The issue is not ownership, but whether one homeowner is receiving rights that other members do not share.
Can my HOA give common area to fix a construction mistake without a vote?
Yes. Civil Code 4600 allows boards to grant exclusive use without a membership vote when necessary to correct engineering errors in recorded documents or to address encroachments caused by construction errors. The purpose of this exception is to fix mistakes, not to create new preferential arrangements.
Can my HOA grant exclusive use because of site conditions or government requirements?
Yes. If changes are required due to topography, obstructions, hardship, environmental conditions, aesthetic considerations tied to development constraints, or a public agency requirement, the board may grant exclusive use without a 67% vote. The key question is whether the facts truly fit within the statutory categories.
Does the HOA need a vote to assign parking spaces or storage units?
Not always. If the CC&Rs designates certain parking spaces, storage units, or similar amenities for assignment but does not assign them to specific units, the board may assign them without a membership vote under Civil Code 4600. The CC&Rs must support that structure.
What must the HOA disclose if a membership vote is required?
If a vote is required, Civil Code 4600 requires the measure placed before the members to disclose whether the HOA will receive monetary consideration and whether the association or the homeowner receiving exclusive use will be responsible for insurance coverage relating to that area. These disclosures are mandatory and directly affect the financial and liability implications of the grant.
About MBK Chapman Fact Sheets
Homeowners searching for answers online will often come across articles that appear authoritative, but are actually written as search-engine marketing content rather than by an experienced HOA lawyer. These pieces tend to prioritize keyword density over clarity, accuracy, or legal context, which often leaves homeowners more confused than informed.
At MBK Chapman, our Fact Sheets are part of our HOA Law Library and are written by Michael Kushner, an HOA lawyer with decades of hands-on experience representing California homeowners. In fact, Michael Kushner is the HOA lawyer who pioneered the systems and strategies used by some of California’s most successful homeowner-side HOA law firms.
Each Fact Sheet is deliberately concise, statute-based, and designed as a quick-reference guide to help homeowners understand key HOA laws and enforcement rules at a glance.
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