Overview

When you bought into your community, you did not just buy walls and a roof. You bought into a bundle of recorded rights set forth in the CC&Rs, including the right to use and enjoy the common area amenities provided in your development. In most California common interest developments, that includes amenities such as a pool or clubhouse. Those rights function in practical terms like an easement of enjoyment appurtenant to ownership. They are not discretionary privileges extended by the HOA board. They are part of what you purchased.

This issue came to my attention through a question posed by a listener of my podcast, HOA HELL, who had heard the short episode titled “Can My HOA Give Homeowners Temporary Exclusive Use of the Clubhouse Without a Member Vote?” In that episode, I explained why charging a rental fee for short-term, exclusive use of a clubhouse for a private event does not constitute a transfer of common area within the meaning of Civil Code 4600. The listener’s follow-up question, however, raised a different issue: whether an HOA may begin charging members for ordinary, day-to-day access to amenities such as a pool or clubhouse.

So what happens when an HOA board adopts a new rule requiring members to pay a fee to use the pool or clubhouse for ordinary, day-to-day access? That question is very different from charging a rental fee for short-term, exclusive use of a clubhouse for a private event. A fee tied to exclusive reservation compensates the HOA for incremental costs and temporary exclusion of other members. A fee imposed on routine access to an ongoing, shared amenity raises a different legal issue: whether the HOA board is regulating the manner of use or materially burdening a recorded right granted in the governing documents.

Under Civil Code 4350, an operating rule is valid only if it falls within the authority granted by the governing documents and is reasonable. Regulation of hours, reservation procedures, guest limits, and conduct rules typically falls within that authority. But conditioning ordinary access to a common area amenity on payment of a new fee that the CC&Rs do not expressly authorize shifts the analysis. At that point, the question becomes whether the rule merely regulates the exercise of rights or effectively alters the substance of those rights.

Cost justification also matters. Courts have upheld fees when they reflect a reasonable, good faith estimate of incremental costs imposed on the HOA. A charge tied to cleaning, staffing, utilities, security, or other demonstrable impacts associated with exclusive or intensified use is easier to defend as regulation. A recurring or access-based fee that resembles revenue generation, or that operates in substance like an assessment without complying with the procedural safeguards governing assessments, presents a more serious legal issue under Civil Code 5600.

Uniform application is equally critical. If all members must pay for comparable private or exclusive use, that is one thing. If HOA board members or favored owners receive preferential treatment or fee waivers for similar use, that is something else entirely. Preferential treatment not only undermines the reasonableness of the rule under Civil Code 4350, but also raises broader concerns about fiduciary duty and good faith governance.

This Fact Sheet examines whether an HOA may newly charge members to use amenities such as a pool or clubhouse for ordinary access, how Civil Code 4350 and 5600 frame the analysis, and when a fee crosses the line from regulation into a material burden on the rights granted in the CC&Rs.

Key Points

When an HOA begins charging members to use amenities such as a pool or clubhouse for ordinary access, the issue is not simply whether the HOA board passed a rule. The real question is whether the HOA board is regulating the manner of use or materially burdening rights granted in the CC&Rs. The distinction between regulation and alteration drives the analysis.

• The analysis starts with the CC&Rs. Most CC&Rs grant each owner a right to use and enjoy the common area, subject to reasonable rules. That right functions in practical terms like an easement of enjoyment appurtenant to ownership. An HOA board may regulate how members exercise that right, but it may not override or materially diminish it through operating rules. If the CC&Rs grant a right of use without conditioning that right on payment of a separate fee, then a later rule that imposes such a fee must be examined carefully to determine whether it regulates the exercise of the right or alters its substance.
• Civil Code 4350 limits the scope of the HOA board’s rulemaking authority. An operating rule is valid only if it is in writing, within the authority granted by the governing documents, adopted in good faith, and reasonable. A rule that conditions ordinary access to a common area amenity on payment of a new fee must satisfy all of those requirements. If the CC&Rs do not authorize such a fee, the HOA board must demonstrate that the rule constitutes permissible regulation rather than an impermissible alteration of recorded rights. An operating rule cannot conflict with the CC&Rs, and when a rule materially burdens a right expressly granted in the recorded declaration, the proper remedy is amendment of the CC&Rs, not unilateral rulemaking. [Keep in mind that this “material alteration” theory is powerful but fact-sensitive. Courts will examine the specific CC&R language, the scope of the burden, and the practical effect of the rule. This argument is strongest where the fee conditions ordinary access to a core amenity that the CC&Rs describe as a common benefit of ownership.] You can learn more about an HOA’s rulemaking authority by watching any of the following episodes of my podcast, HOA HELL: “Can Your HOA Change the Rules Without a Vote? What California Law Actually Says”; “Can My HOA Enforce Rules That Aren’t in the CC&Rs?”; or “Can the Board Change Our Rules Without Telling Us?”
• There is a critical distinction between exclusive reservations and ordinary access. A fee for short-term, exclusive use of a clubhouse for a private event (the issue that generated this question from a podcast listener in the first place) is defensible because it compensates the HOA for incremental costs and temporary exclusion of other members. But it seems to me that ordinary access to a continuously available amenity such as a pool is different. A recurring or access-based fee for day-to-day use raises the question whether the HOA board is converting a shared right into a pay-per-use privilege. A pool, unlike a reserved clubhouse event, is typically a passive, continuously available amenity that forms part of the ownership value proposition. Conditioning its routine use on payment of a new charge implicates different property-right considerations than charging for a private event that excludes others for a single isolated time period.
• Courts focus on reasonableness and proportionality, not labels. Courts have upheld fees when they reflect a reasonable, good faith estimate of costs imposed on the association. In evaluating reasonableness, courts look at whether the rule is rationally related to the protection, preservation, and proper operation of the community and whether it imposes a burden that substantially outweighs its benefit. A fee that is roughly proportional to demonstrable costs is easier to defend than a fee that appears arbitrary or revenue-driven. Where a rule applies equally to all members and serves a legitimate operational purpose, courts are more inclined to uphold it. Unequal or discriminatory application, however, undermines that reasonableness analysis.
• Cost recovery strengthens a fee; revenue generation weakens it. If the HOA board can show that a fee corresponds to incremental costs, such as cleaning, staffing, utilities, security, or insurance exposure tied to specific intensified or exclusive use, the rule fits more comfortably within regulatory authority. If the fee functions as a recurring charge for ordinary access without a clear connection to incremental cost, it begins to resemble an assessment in substance. So, for example: (a) if the charge is imposed on all members regardless of usage and is designed to fund ongoing operations, it likely fits within the framework of regular or special assessments; (b) if the charge is triggered only when a member engages in exclusive or intensified use that generates additional expense, it more closely resembles a regulatory fee; and (c) if the fee conditions routine access to a continuously available amenity, rather than defraying incremental costs associated with exclusive or extraordinary use, the argument that it operates as a de facto assessment becomes stronger.
• Civil Code 5600 prohibits an HOA from imposing or collecting an assessment or fee that exceeds the amount necessary to defray the costs for which it is levied. A so-called “use fee” that operates like an unauthorized assessment, without compliance with statutory safeguards, raises serious legal concerns. [That being said, courts distinguish between regulatory fees and assessments, and they do not require exact dollar-for-dollar correlation. However, trash or utility-type assessments that fund shared services differ fundamentally from a new fee that conditions ordinary access to an amenity previously included within the ownership bundle of rights. That distinction is legally significant.]
• Uniform application is not optional. Even a facially reasonable rule becomes vulnerable if the HOA board applies it unevenly (i.e., engages in selective enforcement). If all members must pay for comparable use, the rule will be easier to defend than if that’s not the case. If HOA board members or favored owners receive waivers for similar use, the rule will almost certainly fail the good faith and reasonableness requirements of Civil Code 4350. [Unequal application of a rule has been a decisive factor in cases where courts invalidated HOA enforcement actions. Equal treatment strengthens a rule’s defensibility; favoritism weakens it.] If you’re interested in learning more about selective enforcement, read my article, “Selective Enforcement in California HOAs: What It Is and How Homeowners Can Fight Back.” You can also read several of my Fact Sheets on the topic, including “How to Prove Selective Enforcement in California HOAs.”
• The proper remedy for deficiencies in the CC&Rs is amendment, not circumvention. If the governing documents do not adequately address changing circumstances, the HOA board must follow the amendment procedures set forth in the CC&Rs. An HOA board may not use operating rules to accomplish what the CC&Rs do not authorize.
• Homeowners should evaluate both authority and application. When faced with a new pool or clubhouse fee, homeowners should examine:
  •  Whether the CC&Rs expressly authorize such fees.
  •  Whether the rule was adopted in compliance with Civil Code 4350.
  •  Whether the fee reflects demonstrable, incremental costs.
  •  Whether the rule is applied uniformly and in good faith.
  •  Whether the rule conditions ordinary access to a core amenity in a materially burdensome way.

Taken together, these principles confirm that an HOA may regulate common area use, but it may not use operating rules to rewrite or materially burden the recorded right of members to use and enjoy the common area unless the governing documents authorize that burden and the rule remains reasonable. If your HOA has begun charging for ordinary access to a core amenity and you believe the rule materially burdens your recorded rights, call us at MBK Chapman. We’ll set your HOA straight.

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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