Overview

When an HOA board allows one homeowner to fence off a strip of land, enclose a patio, control a portion of the roof, or otherwise receive exclusive rights over common area, the first question most homeowners ask is simple: Did the members approve this? Civil Code 4600 often requires member approval before a board grants a member exclusive use of common area. But “often” is not the same as “always,” and that distinction is where disputes begin.

As a general rule, unless the governing documents specify a different percentage, the HOA must obtain approval from the owners holding at least 67% of the separate interests before granting exclusive use of common area. That threshold is not symbolic. It reflects the Legislature’s view that common area belongs to the membership as a whole, and that carving out exclusive rights for one owner can materially affect everyone else.

At the same time, Civil Code 4600 contains multiple statutory exceptions where the law does not require member approval. Those exceptions depend heavily on specific facts, and the statute frames them narrowly. HOAs sometimes assume an exception applies without fully analyzing whether the specific facts truly fit within the statutory language. Homeowners, on the other hand, sometimes assume the law always requires a vote, without considering whether the statute authorizes their HOA to act without one.

While my prior Fact Sheet, “Can My California HOA Give One Homeowner Exclusive Use of Common Area?” focused on the overall structure of Civil Code 4600 and its enumerated exceptions, this one concentrates on the approval requirement itself and the consequences of getting it wrong. It explains how to determine whether the Davis-Stirling Act required a member vote, how to analyze whether the HOA properly relied on an exception, and what practical steps homeowners can take if their HOA granted a member exclusive use without lawful approval. If you believe your HOA skipped a required vote, or if your HOA or its counsel tells you that no vote was necessary, this analysis will help you evaluate the strength of that position before you decide how to proceed.

Key Points

Civil Code 4600 answers a specific question: when must an HOA obtain member approval before granting exclusive use of common area, and when may the board act without a vote? The statute sets a default approval rule, then lists exceptions. When disputes arise, the analysis almost always turns on whether the board properly applied that framework.

• Start with the governing documents before you start with the statute. Civil Code 4600 sets 67% as the default approval threshold, but your CC&Rs may specify a different percentage. The first step in any analysis is to confirm what percentage your governing documents require before the board may grant a member exclusive use of common area.
• If no statutory exception applies, the HOA must obtain the required member approval before granting exclusive use. When the board grants one homeowner rights that exclude the rest of the membership from using part of the common area, the Davis-Stirling Act triggers the approval requirement unless a clearly applicable exception contained in Civil Code 4600 applies.
• The HOA carries the responsibility of identifying the correct exception and matching it to the actual facts. The statute does not give HOA boards discretion to skip a vote simply because they believe exclusive use is reasonable. The HOA must be able to point to a specific statutory exception and demonstrate that the facts fit within it.
• Homeowners should analyze the HOA’s stated justification, not just the result. When an HOA grants exclusive use of common area to a member without a vote, focus on the reasoning the board relied upon. Identify which statutory category the board invokes and examine whether the real-world circumstances support that classification.
• Member approval means more than holding a vote; it means meeting the correct percentage. Even if the HOA conducts a proper membership vote, the grant fails if the vote-count fails to meet the percentage required by Civil Code 4600 or your governing documents.
• When the board seeks member approval, it must disclose financial and insurance consequences. Civil Code 4600 requires the measure to disclose whether the HOA will receive monetary consideration and whether the HOA or the homeowner receiving the exclusive use rights will bear responsibility for insurance relating to the exclusive use area. Members cannot make an informed decision without those disclosures.
• HOAs sometimes record the grant of exclusive use, particularly when they shift maintenance and insurance responsibility to a homeowner. HOAs will often formalize a transfer under Civil Code 4600 by creating and recording a covenant that assigns maintenance, repair, and insurance obligations to the homeowner receiving the exclusive use rights. HOAs record these covenants so the obligations run with the land (i.e., so that they bind all future owners of that property and do not disappear when the current owner sells).
• The Business Judgment Rule does not replace statutory compliance. Courts often defer to HOA boards on maintenance and operational decisions, but Civil Code 4600 sets statutory limits. A board cannot rely on general discretion to bypass a required vote. [If you’d like to learn about the Business Judgment Rule, I suggest reading both of the following Fact Sheets: “What Is the Business Judgment Rule in California HOAs?” and “When the Business Judgment Rule Does Not Protect an HOA Board.” Or, if you prefer, you can watch the following episode of my podcast, HOA HELL: “California HOAs: The Business Judgment Rule.”]
• If the HOA grants exclusive use without the required approval, affected members may challenge and reverse the transfer. An HOA board that skips the approval requirement or stretches an exception beyond its limits risks invalidation of the grant and potential legal exposure for acting outside its statutory authority.
• Timing matters. Once an HOA records documents, reallocates maintenance obligations, or allows construction to proceed based on an exclusive use grant, unwinding the arrangement becomes much more complicated. Members who believe the board failed to obtain required approval should evaluate their position promptly.
• If you believe that your HOA improperly transferred common area to another member, call MBK Chapman. If the HOA granted exclusive use without satisfying Civil Code 4600, call the expert HOA attorneys at MBK Chapman, and we’ll set your HOA straight.

Civil Code 4600 does not prohibit exclusive use of common area, but it tightly regulates how and when an HOA may grant it. The analysis always starts with the approval requirement, then moves to the governing documents, and finally to the specific statutory exceptions. If an HOA grants a member exclusive use of any portion of the common area without satisfying that framework, the HOA risks invalidating the grant and triggering liability for acting outside the limits of Civil Code 4600.

FAQs

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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