California Civil Code
§ 1351. Definitions
As used in this title, the following terms have the following meanings:
(a) “Association” means a nonprofit corporation or unincorporated association created for the purpose of managing a common interest development.
(b) “Common area” means the entire common interest development except the separate interests therein. The estate in the common area may be a fee, a life estate, an estate for years, or any combination of the foregoing. However, the common area for a planned development specified in paragraph (2) of subdivision (k) may consist of mutual or reciprocal easement rights appurtenant to the separate interests.
(c) “Common interest development” means any of the following:
(1) A community apartment project.
(2) A condominium project.
(3) A planned development.
(4) A stock cooperative.
(d) “Community apartment project” means a development in which an undivided interest in land is coupled with the right of exclusive occupancy of any apartment located thereon.
(e) “Condominium plan” means a plan consisting of (1) a description or survey map of a condominium project, which shall refer to or show monumentation on the ground, (2) a three-dimensional description of a condominium project, one or more dimensions of which may extend for an indefinite distance upwards or downwards, in sufficient detail to identify the common areas and each separate interest, and (3) a certificate consenting to the recordation of the condominium plan pursuant to this title signed and acknowledged by the following:
(A) The record owner of fee title to that property included in the condominium project.
(B) In the case of a condominium project which will terminate upon the termination of an estate for years, the certificate shall be signed and acknowledged by all lessors and lessees of the estate for years.
(C) In the case of a condominium project subject to a life estate, the certificate shall be signed and acknowledged by all life tenants and remainder interests.
(D) The certificate shall also be signed and acknowledged by either the trustee or the beneficiary of each recorded deed of trust, and the mortgagee of each recorded mortgage encumbering the property.
Owners of mineral rights, easements, rights-of-way, and other nonpossessory interests do not need to sign the condominium plan. Further, in the event a conversion to condominiums of a community apartment project or stock cooperative has been approved by the required number of owners, trustees, beneficiaries, and mortgagees pursuant to Section 66452.10 of the Government Code, the certificate need only be signed by those owners, trustees, beneficiaries, and mortgagees approving the conversion.
A condominium plan may be amended or revoked by a subsequently acknowledged recorded instrument executed by all the persons whose signatures would be required pursuant to this subdivision.
(f) A “condominium project” means a development consisting of condominiums. A condominium consists of an undivided interest in common in a portion of real property coupled with a separate interest in space called a unit, the boundaries of which are described on a recorded final map, parcel map, or condominium plan in sufficient detail to locate all boundaries thereof. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. The description of the unit may refer to (1) boundaries described in the recorded final map, parcel map, or condominium plan, (2) physical boundaries, either in existence, or to be constructed, such as walls, floors, and ceilings of a structure or any portion thereof, (3) an entire structure containing one or more units, or (4) any combination thereof. The portion or portions of the real property held in undivided interest may be all of the real property, except for the separate interests, or may include a particular three-dimensional portion thereof, the boundaries of which are described on a recorded final map, parcel map, or condominium plan. The area within these boundaries may be filled with air, earth, or water, or any combination thereof, and need not be physically attached to land except by easements for access and, if necessary, support. An individual condominium within a condominium project may include, in addition, a separate interest in other portions of the real property.
(g) “Declarant” means the person or group of persons designated in the declaration as declarant, or if no declarant is designated, the person or group of persons who sign the original declaration or who succeed to special rights, preferences, or privileges designated in the declaration as belonging to the signator of the original declaration.
(h) “Declaration” means the document, however denominated, which contains the information required by Section 1353.
(i) “Exclusive use common area” means a portion of the common areas designated by the declaration for the exclusive use of one or more, but fewer than all, of the owners of the separate interests and which is or will be appurtenant to the separate interest or interests.
(1) Unless the declaration otherwise provides, any shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest.
(2) Notwithstanding the provisions of the declaration, internal and external telephone wiring designed to serve a single separate interest, but located outside the boundaries of the separate interest, are exclusive use common areas allocated exclusively to that separate interest.
(j) “Governing documents” means the declaration and any other documents, such as bylaws, operating rules of the association, articles of incorporation, or articles of association, which govern the operation of the common interest development or association.
(k) “Planned development” means a development (other than a community apartment project, a condominium project, or a stock cooperative) having either or both of the following features:
(1) The common area is owned either by an association or in common by the owners of the separate interests who possess appurtenant rights to the beneficial use and enjoyment of the common area.
(2) A power exists in the association to enforce an obligation of an owner of a separate interest with respect to the beneficial use and enjoyment of the common area by means of an assessment which may become a lien upon the separate interests in accordance with Section 1367 or 1367.1.
(l) “Separate interest” has the following meanings:
(1) In a community apartment project, “separate interest” means the exclusive right to occupy an apartment, as specified in subdivision (d).
(2) In a condominium project, “separate interest” means an individual unit, as specified in subdivision (f).
(3) In a planned development, “separate interest” means a separately owned lot, parcel, area, or space.
(4) In a stock cooperative, “separate interest” means the exclusive right to occupy a portion of the real property, as specified in subdivision (m).
Unless the declaration or condominium plan, if any exists, otherwise provides, if walls, floors, or ceilings are designated as boundaries of a separate interest, the interior surfaces of the perimeter walls, floors, ceilings, windows, doors, and outlets located within the separate interest are part of the separate interest and any other portions of the walls, floors, or ceilings are part of the common areas.
The estate in a separate interest may be a fee, a life estate, an estate for years, or any combination of the foregoing.
(m) “Stock cooperative” means a development in which a corporation is formed or availed of, primarily for the purpose of holding title to, either in fee simple or for a term of years, improved real property, and all or substantially all of the shareholders of the corporation receive a right of exclusive occupancy in a portion of the real property, title to which is held by the corporation. The owners’ interest in the corporation, whether evidenced by a share of stock, a certificate of membership, or otherwise, shall be deemed to be an interest in a common interest development and a real estate development for purposes of subdivision (f) of Section 25100 of the Corporations Code.
A “stock cooperative” includes a limited equity housing cooperative which is a stock cooperative that meets the criteria of Section 33007.5 of the Health and Safety Code.
Added Stats 1985 ch 874 § 14. Amended Stats 1987 ch 357 § 1; Stats 1989 ch 1150 § 2; Stats 1991 ch 263 § 3 (AB 1840); Stats 2000 ch 26 § 1 (SB 453), effective May 24, 2000; Stats 2002 ch 1111 § 1 (AB 2289).
Former § 1351, similar to present §§ 1352, 1353, and 1355, was added Stats 1963 ch 860 § 3, amended Stats 1984 ch 291 § 3, and repealed Stats 1985 ch 874 § 13.
Former § 1351, similar to present Prob C §§ 6174, 6409, was enacted 1872 and repealed Stats 1931 ch 281 (Prob C § 1700).
Amended subd (i) by adding (1) subdivision designation (a)(1); and (2) subd (a)(2).
(1) Added the last sentence of subd (b); (2) substituted subd (c) for former subd (c) which read: “(c) “Common interest development” means a real property development:
“(1) Which consists or will consist of separately owned lots, parcels, areas, or spaces with either or both of the following features:
“(A) One or more additional contiguous or noncontiguous lots, parcels, areas, or spaces owned in common by the owners of the separately owned lots, parcels, areas, or spaces.
“(B) Mutual, common, or reciprocal interests in, or restrictions upon, all or a portion of these separately owned lots, parcels, areas, or spaces, or both.
“(2) And, in which the owners of the separately owned lots, parcels, areas, or spaces have rights, directly or indirectly, to the beneficial use and enjoyment of the lots, parcels, areas, or spaces referred to in subparagraph (A) of paragraph (1) or any one or more of them or portions thereof or interests therein, or the interests or restrictions referred to in subparagraph (B) of paragraph (1).
“The estate in a separately or commonly owned lot, parcel, area, or space may be an estate of inheritance or perpetual estate, an estate for life, an estate for years, or any combination of the foregoing.
“Either common ownership of the additional contiguous or noncontiguous lots, parcels, or areas referred to in subparagraph (A) of paragraph (1) or the enjoyment of the mutual, common, or reciprocal interests in, or restrictions upon, the separately owned lots, parcels, areas, or spaces pursuant to subparagraph (B) of paragraph (1), or both, may be through ownership of shares of stock or membership in an association or otherwise. Shares of stock, if any exist, shall be deemed to be interests in a common interest development and real estate development for purposes of subdivision (f) of Section 25100 of the Corporations Code.”; (3) deleted “common interest” after “means a” in subd (d), the first sentence of subd (f), the introductory clause of subd (k), and the first sentence of subd (m); (4) redesignated subdivisions in the fourth sentence of subd (k); (5) substituted subd (k)(1) for former subd (k)(1) which read: “(1) Any contiguous or noncontiguous lots, parcels, or areas in which owners of separately owned lots, parcels, or areas are owners in common, possessing appurtenant rights to the beneficial use and enjoyment of the commonly owned property.”; (6) substituted “separate interest with respect to the beneficial use and enjoyment of the common area” for “separately owned lot, parcel, or area with respect to the beneficial use and enjoyment” in subd (k)(2); (7) substituted “area, or space” for “or area, as specified, in subdivision (k)” in subd (l)(3); and (8) added the last paragraph of subd (l).
(1) Added the third sentence of subd (b); and (2) substituted “separate interests” for “separately owned lot, parcel, or area” before “in accordance” in subd (k)(2).
(1) Amended subd (e) by (a) adding “following” at the end of the introductory clause; (b) adding subdivision designations (e)(i)-(e)(iv); (c) adding “The” in subd (e)(i); (d) substituting the period for “and” at the end of subd (e)(ii); (e) adding the second sentence in the second paragraph; and (f) deleting “to record a condominium plan” after “required” in the last paragraph; and (2) substituted “separate” for “Separate” in subd (l)(2).
(1)Substituted subdivision designators (a) for (i);
(b) for (ii);
(c) for (iii); and (d) for (iv); (2) deleted “the” in subd (k)(1) before “association or in common”; (3) added “or 1367.1″ in subd (k)(2); and (4) added comma after “of” in subd (m) before “primarily for the purpose”. (3) (3)
Former CC § 1350, as added Stats 1963 ch 860 § 3, amended Stats 1984 ch 874 § 14.
Contents of declaration: CC § 1353
Delinquent assessment liens: CC § 1367
Duties of one arranging for transient occupancies in common interest development on behalf of another: CC § 1864
Securities exempt from restrictions on sellers: Corp C § 25100
Condominium project as a subdivision: Gov C § 66424
“Limited-equity housing cooperative”: H & S C § 33007.5
Creation of tax lien on unit: Rev & Tax C § 2188.6
Cal Forms Pl & Practice (Matthew Bender) ch 124 “Condominiums and Other Common Interest Developments”
Witkin Summary (9th ed) Corporations § 471
Miller & Starr, Cal Real Estate 3d §§ 25:7, 25:8, 25:13, 25:16, 25:53, 25:65, 25:67, 25:118, 25:153
Rutter Cal Prac Guide, Landlord-Tenant §§ 6:120 et seq
Law Review Articles:
1989 legislative summary. 8 Cal Real Prop J No. 1 p 1
The master planned golf course community: Special problems and suggested solutions. 8 Cal Real Prop J No. 3 p 25
The mechanics of creating condominiums and planned developments in California. 15 Cal Real Prop J No. 4, p. 36
Condominium bibliography. 39 LA Bar B 336
Resort condominium hotels. 49 LA Bar B 279
7 Loyola U of LA LR 47
Land use and operational controls in the planned development. 9 San Diego LR 28
Federal income tax consequences for condominium homeowners. 15 Santa Clara LR 384
Symposium: common interest development communities: Part 1: a comparison of California common interest development law and the Uniform Common Interest Ownership Act. 38 Santa Clara LR 1009
Condominium in California. 36 SCLR 351
An overview of California condominium law. 6 Southwestern U LR 487
Condominium housing. 17 Stan LR 842
Attorney General’s Opinions:
A development created in 1972 which was recorded under a “map of a condominium project” and granted a special use permit by the county “for a Planned Residential Development which a condominium,” where the residents own separate lots and an undivided interest in the lot constituting the common area, is a “planned development” for purposes of California Law. 85 Ops. Cal. Atty. Gen. 162
Zoning or building regulations as applied to condominiums. 71 ALR3d 866
Real-estate taxation of condominiums. 71 ALR3d 952
Validity and construction of condominium association’s regulations governing members’ use of common facilities. 72 ALR3d 308
Standing to bring action relating to title in real property of condominium. 72 ALR3d 314
Self-dealing by developers of condominium project as affecting contracts or leases with condominium associations. 73 ALR3d 613
Expenses for which condominium association may assess unit owners. 77 ALR3d 1290
NOTES OF DECISIONS
NOTES OF DECISIONS
In an action arising out of the dissolution of a homeowners’ association, the trial court erred in concluding that the development was a common interest development for purposes of the Davis-Stirling Act, since it had no common area within the meaning of CC § 1351(b). In order for a planned development to fall within the act, there must be, at a minimum, appurtenant easement rights to a portion of the development, while here the language in the declaration at issue created covenants running with the land or equitable servitudes as to certain nonbuildable lots. It did not give the owners of the other lots any interest in those lots or any right to use those lots for their own enjoyment. Hence, it did not create any mutual or reciprocal easement rights appurtentant to the separate interests. Therefore, the act did not apply (CC § 1374). Committee to Save the Beverly Highlands Homes Assn. v Beverly Highlands Homes Assn. (2001, 2nd Dist) 92 Cal App 4th 1247, 112 Cal Rptr 2d 732