Overview

Encroachment disputes in California HOAs often arise when a homeowner starts treating common area as if it were part of that homeowner’s separate interest. That happens when a neighbor fences off open space, extends a patio, installs landscaping beyond the permitted boundary, builds into HOA property, or otherwise takes control of area that belongs to the community as a whole. The analysis turns on whether the homeowner has any legal basis to occupy, control, or expand into that space. If no such right exists, the use qualifies as an encroachment regardless of how long it has continued or how the homeowner (or HOA) characterizes it.

Homeowners often misunderstand how rights to use common area actually work. Some areas are open for general use by the membership, while the HOA designates other portions for the exclusive use of specific owners, such as patios or balconies assigned to individual units. An exclusive right to use part of the common area does not give a homeowner the right to alter it, enlarge it, enclose it, or treat adjacent HOA property as private space.

Most common area encroachment disputes begin without any formal approval process at all. A homeowner extends beyond an existing boundary, installs improvements into HOA property, or gradually occupies adjacent space without seeking permission, and the issue only surfaces after the fact. In other cases, the HOA approves the work, ignores it, or treats it as too minor to address. None of those scenarios changes the underlying character of the property or creates rights that did not already exist.

This Fact Sheet, the second in a four-part encroachment series, focuses on situations where a homeowner encroaches on HOA common area without the legal right to do so (hence my use of the word “encroachment”) and begins using it as if it were their private property. It explains when that conduct qualifies as an encroachment, why exclusive use rights do not expand a homeowner’s rights beyond defined boundaries, and when an HOA lacks authority to allow that extended use in the first place. If you need the broader framework for encroachment, read the first Fact Sheet in this series, “What Does It Mean When Someone Encroaches on My Property?” The next two Fact Sheets in this series, “What Can I Do If Someone Blocks My Easement?” and “Can My Neighbor Drain Water Onto My Property?,” address other forms of encroachment that arise in California HOAs.

Key Points

Common area encroachment disputes in California HOAs arise when a homeowner begins using HOA-owned property as if it belongs to the homeowner. Such conduct usually involves expanding into adjacent space, enclosing open area, or placing improvements onto property that belongs to the HOA. Start the analysis of this encroachment type by classifying the area. It then moves to the limits on exclusive use, including when an HOA has the authority to grant one homeowner control over common area and when it does not. Finally, it addresses how common patterns, such as patio expansions, fencing, and landscaping beyond assigned boundaries, create encroachments even when a homeowner believes that the use is allowed.

• Common area encroachment occurs when a homeowner uses HOA-owned property in a way that exceeds the rights granted by the governing documents or the law. Civil Code 4095 provides the technical definition, while the CC&Rs usually expand on the definition. In practical terms, homeowners should begin with the premise that common area belongs to the HOA, not to the nearest unit and not to the owner who uses it most often. As it turns out, many common area takeover disputes start with a homeowner acting as if proximity equals ownership. It doesn’t. If an area falls outside the separate interest, the homeowner needs a legal basis to occupy or control it beyond ordinary use.
• A right to use common area does not include the right to enlarge it, enclose it, or push into adjacent common area. A homeowner starts with a valid exclusive right to use a patio, balcony, parking space, or similar area, then extends beyond the assigned footprint by adding fencing, hardscape, planters, gates, storage, or structural improvements. Some homeowners, for example, might decide to fence in a small area adjacent to their property as a private contemplation garden. Another homeowner might try to extend their patio by putting some outdoor furniture in the common area and then attempt to limit who may use that furniture.
• Exclusive use common area remains common area even though only one unit has a right to use it. Civil Code 4145 identifies a category of common area that the governing documents reserve for a single unit’s use. This category most often includes patios, balconies, shutters, awnings, window boxes, doorsteps, stoops, porches, doorbells, and certain entry areas. While some homeowners assume that exclusive use means private ownership, it doesn’t. Exclusive use common area is still common area, which means that in most cases, it’s owned by the HOA as a whole. [There are exceptions to this, such as in the case of co-ops, but that distinction is beyond the scope of this Fact Sheet.]
• HOA approval does not automatically make a homeowner’s takeover of common area lawful. Bad HOAs approve projects even though they lack the legal authority to do so. In the context of encroachment into common area, this issue often arises when a homeowner submits an architectural application that extends beyond an existing patio, balcony, or assigned area, and the board approves it without analyzing whether the approval effectively grants exclusive use of additional common area. The fact that the HOA signed off on the plans does not answer whether the board had the legal authority to approve that expansion in the first place.
• Subject to a set of enumerated exceptions, the Davis-Stirling Act prohibits HOAs from granting a homeowner exclusive use of any common area without a membership vote. Civil Code 4600 controls when an HOA may grant the exclusive use of previously designated common area to a member. Under Civil Code 4600, unless the governing documents state a different percentage, an HOA cannot grant a homeowner exclusive use of common area unless at least 67% of the HOA’s members vote in favor of that transfer. [This requires a vote of 67% of all the members, not just 67% of a quorum. For example, if an HOA has 100 members, the transfer couldn’t occur unless at least 67 of the members voted in favor of the transfer. So if only 60 showed up to vote, even if all of them voted in favor, it would not be enough to approve such a transfer.] It doesn’t matter whether the area seems small, whether the homeowner has used it for years, or whether the board believes the change improves the property. If the action results in one homeowner receiving exclusive control over common area, the statute requires member approval unless the board identifies a specific exception. If Civil Code 4600 requires a membership vote and the board never obtains it, the approval does not cure the problem and does not convert the area into lawful exclusive use. The same analysis also applies when a board attempts to formalize an existing encroachment after the fact by retroactively approving it. The board must still satisfy the statutory framework before it can lawfully grant those rights. [If you’d like to learn more about the mechanics of an HOA converting common area to exclusive use common area, you’ll find the following Fact Sheets helpful: “Does My HOA Need Member Approval to Give Exclusive Use of Common Area?” and “Can My California HOA Give One Homeowner Exclusive Use of Common Area?”]
• Civil Code 4600 contains a series of exceptions, but most of them address technical or compliance-driven situations rather than ordinary homeowner use. Subsections (b)(1), (b)(2), and (b)(3)(A) through (D), along with (b)(3)(K), deal with development plans, correcting recorded or construction errors, accommodating site conditions, or complying with public agency requirements or governing law. These provisions do not apply to typical homeowner attempts to expand patios, fence off common area, or claim nearby land.
  • An HOA may grant exclusive use of common area without a membership vote in exchange for a maintenance agreement. Under this exception, an HOA can grant exclusive use of a portion of the common area to a homeowner if the common area in question is not generally accessible to the membership and the homeowner agrees to enter into an agreement or recordable covenant to manage and maintain the area. Such agreements, or covenants, often require the homeowner to indemnify and insure the HOA against any liability arising from the homeowner’s use or improvements. Take a condominium owner who wants to install a skylight. The roof is common area, but the HOA could allow the owner to take exclusive use of a small portion of the roof for that purpose if the owner agreed to maintain the area, keep the waterproofing intact, and indemnify the HOA from any resulting damage, including leaks or impacts to other units.
  • An HOA may grant exclusive use of common area without a membership vote to accommodate a disability. Another exception relates to the HOA granting an accommodation to a disabled resident, such as assigning a closer parking space, modifying access routes, or reserving an area for mobility-related use. This exception is fact-specific and tied directly to the accommodation.
  • An HOA may grant exclusive use of certain designated common areas without a membership vote if the governing documents contemplated but did not specify the assignments. Many CC&Rs talk about parking spaces, storage units, or other similar amenities being assigned to each unit without specifying any specific designations. This exception, therefore, would allow the HOA to assign an unallocated parking space to a particular unit if the governing documents allowed that type of assignment.
  • An HOA may grant exclusive use of common area without a membership vote to a homeowner to install an electric vehicle charging station. Under this exception, HOAs are free to grant exclusive use rights to a homeowner who wants to install an EV charging station (including installing a meter and utility lines over the common area) in a designated garage or parking space.
  • An HOA may grant exclusive use of common area without a membership vote to a homeowner to install solar panels on the common area roof. Homeowners who live in condominiums and townhomes with shared common area roofs have the right to install solar panels on their pro-rata portions of the roof (providing they don’t interfere with other homeowners’ solar rights), and this exception allows an HOA to grant permission for such use without a membership vote.
• When a homeowner takes over common area or the HOA grants exclusive use without proper authority, document the facts and force the HOA to address the violation. Start by identifying the exact area the neighbor seized and how that neighbor uses it, then gather clear evidence such as photos, measurements, and any plans or applications that show the expansion or enclosure. Review the CC&Rs to determine whether the HOA ever assigned the area for exclusive use and whether the HOA created or recorded any document attempting to formalize the arrangement. Submit a written demand to the HOA asking it to identify the legal basis for the transfer, including any vote, recorded covenant, or claimed statutory exception. And finally, require the HOA to point to the specific authority it relied on rather than general statements about approval or discretion.
• If your HOA refuses to act to protect everyone’s common area rights, call the highly experienced HOA attorneys at MBK Chapman. Whether a homeowner has unilaterally acted by taking over common area, or the HOA has approved the transfer, if the board failed to follow the correct procedures, the transfer cannot be allowed to continue. If your HOA refuses to follow the law, call the HOA attorneys at MBK Chapman, and we’ll set your HOA straight.

Common area encroachments happen all of the time. They occur when HOA boards or homeowners pull HOA property into private use without a clear, lawful basis. The analysis centers on boundaries, the governing documents, and whether the HOA had authority to allow one owner to control space that belongs to the membership. Board approval or silence does not establish that authority. When the facts show that common area has been enclosed, expanded into, or otherwise controlled without the required basis, the condition qualifies as an encroachment requiring the HOA to take action.

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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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