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Crown Harbor Homeowner Association

Patio Extension Requests

When an Owner makes a request to extend the Owner's patio, the Owner is essentially requesting that the Association convert common area to exclusive use common area. This type of request can only be approved under very specific conditions.

rules
By-Laws

Applicable Rules

  • Section 7.2 of the Association By-Laws states that granting an exclusive easement to any General Common Area to a Member requires the vote or written assent of a majority of the Voting Power of the Members as long as Civil Code 1363.07 (or comparable superseding statute) is valid law.
  • Civil Code 1363.07 has been superseded by Civil Code 4600. Civil Code 4600 (b)(3)(E) allows the board to grant exclusive use of any portion of the common area to a member to transfer the burden of management and maintenance of any common area that is generally inaccessible and not of general use to the membership at large of the association.
  • Architectural applications granting exclusive use of common area without membership approval can be considered and approved when the common area being transferred is generally inaccessible and not of general use to the membership at large of the association, and the transferee is responsible for management and maintenance of the transferred area.
  • Despite the ability of a board to grant exclusive use of common area for the purpose of extending patios without membership approval using the logic that the common area being transferred is generally inaccessible and not of general use to the membership at large of the association, and the transferee is responsible for management and maintenance of the transferred area, the Associa attorney for Crown Harbor advised that

    a membership vote IS required

    as what is considered "generally inaccessible and not of general use to the membership" is a very narrow scope. An example is a backyard fence 3 feet away from an inaccessible ravine, where the owner is requesting permission to extend the fence a foot closer to the ravine. Since there's no way for anyone to access the 3 feet of space beyond the fence, the board could approve the request without a membership vote.
  • In terms of patios that were extended years ago before this information became known, the Statute of Limitations for violation of a CC&R provision, architectural guideline, or rule is 5 years per Davis-Stirling. While the requirement for a membership vote comes from civil code, not the CC&Rs, there are other factors that make it difficult for an association to force patios etc. to be changed back to the original condition. See Davis-Stirling Failure to Enforce for more information. As such:
    • In cases where fences have already been moved, the existing extended patios are grandfathered in.
    • In cases where fences were not moved, but the common area ground was replaced by pavers, the Owners have been asked to treat the space as improved common area (e.g., adorn with potted plants) and not exclusive use common area (e.g., placement of tables and chairs).
doc
Form

Process

  • The Owner submits a form to the Design Review Committee at designreview@crownharbor.org. The committee will evaluate, make a recommendation, and then forward to the board for consideration.
  • Unlike other items under the jurisdiction of the Design Review Committee, due to the specific stipulation in the civil code, extension requests can only be approved by a majority vote of the membership.
  • If the board approves the request, it is submitted to the membership for a vote. Requests of this nature can be bundled in with the annual voting materials unless the Owner wants to assume the cost of a separate mailing and tabulation sooner.
  • The request is voted on using the standard secret ballot process used for board elections and other matters. If the membership approves the request, the work can be planned and scheduled using the stipulations that follow.
  • Each extension request is handled individually. The legal advice the Board received ruled out the possibility of creating generic criteria, since in each case, the membership would need to vote on the extension. Only the Type C units have the possibility of patio extensions that wouldn't impact the green belt or along the bay path. Of the Type C units, not all of those could be extended due to various existing plantings and visual lines of sight caused by the staggering of the units on the property.

Patio Extension Stipulations

In the event that a membership vote is held and the request is approved, the following stipulations apply.

locations
Enlarge

Locations

  • Each request is considered on a case-by-case basis; however, in general, side patios between units are more likely to be approved than rear patios along the seaside path or adjacent to the green belts.
  • The seaside path and green belt areas are considered to be of general use to the membership at large of the association and are thus excluded for consideration.
locations
Not moved


locations
Moved

Offset

  • The patio extension must be set back from the street facing wall to maintain the visual offset of the patio from the garage.
  • The result is that a moved fence is still offset from the edge of the garage as was an unmoved fence.
maintenance

Maintenance

  • For patio areas today, the association maintains the fences and railings. The Owner maintains the flooring.
  • With the approval of a request, the responsibility of maintaining the additional flooring shifts to the Owner even though the area was originally common area.
appearance

Appearance

  • The resulting extension should be identical in style and appearance as the original patio area even though the space is now larger.
  • In other words, the flooring and fencing match in materials and paint color. There should be consistency throughout the space. The result can't look like an extension.
costs

Costs

  • The Owner covers all costs associated with the conversion. This includes the cost of additional fencing.
  • Once converted, the Association will maintain the additional fencing as it does with all fencing throughout the Association. The Owner is responsible for maintaining the flooring in perpetuity.
contractors

Work

  • The work must be performed by a licensed contractor.
  • The contractor must be specified in the variance request.
  • Under normal circumstances, Owners do not need to obtain a building permit from the city of Alameda for the revision as this is a modification to the fencing and flooring, not the building.
  • The need for a permit is evaluated on a case-by-case basis.

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