Legal Question in Real Estate Law in California

The county and state do not restrict the amount of time a member can stay at their cabins in our planned development, where the association, which is a non-profit corporation, owns common areas and each member owns their own cabin. The bylaws of our association do. Five members are full-time residents. The other thirty-five members have five months use of their cabins per year, and the rest of the time, their cabins are vacant.

California Civil Code, Section 1361.5, states in full: "Except as otherwise provided in law, an order of the court, or an order pursuant to a final and binding arbitration decision, an association may not deny an owner or occupant physical access to his or her separate interest, either by restricting access through the common areas to the owner's separate interest, or by restricting access solely to the owner's separate interest."

Is it legal for an association to prohibit members full-time residency of their cabin through the bylaws where only a majority of a quorum of members voted for the residency restrictions in the bylaws? What is the intent of California Civil Code, Section 1361.5?


Asked on 11/30/12, 8:33 pm

1 Answer from Attorneys
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

"Access" and "residency" are separate concepts. Restricting an owner's residency rights to five months is very different from prohibiting access. During the seven months when residency is not permitted, an owner would still have the right to access his or her cabin, e.g. to make sure the doors were locked or the thermostat was prooperly set, or to look for personal items left behind by mistake. He/she would not, however, have any right to use the property as a residence. There is perhaps room to debate when access becomes residency, but they are clearly different concepts.

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Answered on 12/01/12, 9:57 am


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