What is the name of your state (only U.S. law)? California
I purchased a condo in a 40 unit apartment building from the developer. It came with a parking space ("exclusive use common area") which was directly next to a maintenance room. I recently reviewed my disclosures and noticed that the maintenance room does not appear in the survey of the garage. Upon measuring my spot, I found that the wall was actually built well within the boundaries of my spot. Do I have any recourse? And would it be against the HOA or the developer?
I have copy and pasted some relevant sections from the CC&Rs below:
A. Owners' Nonexclusive Easements; Association Rights.
Every Owner has a nonexclusive easement of use, enjoyment, ingress, egress, and support in, to, and throughout the Common Area and any improvements or facilities on the Common Area. However, such nonexclusive easements shall be subordinate to, and shall not interfere with the right to use Exclusive Use Common Areas. Each such nonexclusive easement shall be appurtenant to the respective Condominium and shall pass with the title to the Condominium. Nonexclusive easements shall be subject to all of the rights and powers of the Association as described in Article 5, including, without limitation, the right to assign, rent, license or otherwise designate and control use of any parking spaces other than those which are Exclusive Use Common Areas appurtenant to a Unit.
C. Power to Grant Easements. Declarant or the Association shall have the power to grant and convey in the name of all the Owners as their attorney-in-fact (or in the name of the Association as to any property to which the Association holds title) to any Owner or other party easements and rights-of-way in, on, over, or under the Common Area for the purpose of constructing, erecting, operating or maintaining lines, cables, wires, conduits, or other devices for electricity, cable television, computer, internet, power, telephone and other purposes, public sewers, storm water drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes, and any similar public or quasi-public improvements or facilities. However, a majority vote of the Owners is required before the Association or Declarant may conveyor otherwise transfer to any Owner fee title, easements, Exclusive Use Common Areas, leasehold estates, rights-of-way and other interests in the Common Area . However, a vote of a majority of the Owners is not required for a conveyance or transfer to an Owner for any of the purposes specified in Civil Code section 1363.07. Each Owner, in accepting a deed to a Condominium, expressly consents to such easements and rights of way and authorizes and appoints the Association and Declarant (as long as Declarant owns one or more Condominiums) as attorney-in-fact of such Owner to execute any and all instruments conveying or creating such easements or rights or way. However, no such easement can be granted if it would substantially interfere with the use, occupancy, or enjoyment by any Owner of his Unit or the Common Area of the Project unless approved by the vote or written consent of the holders of not less than sixty-seven percent (67%) of the voting rights of each class of Members and their first mortgagees.
D. Encroachment Easements.
Each Condominium has an easement over all adjoining Units and the Common Area for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting of the building, or any other cause as long as the encroachment exists. In no event shall a valid encroachment be created in favor of an Owner if it occurred due to his willful misconduct. In the event a structure is repaired or rebuilt, minor encroachments over adjoining Units and the Common Area shall be permitted and there shall be valid easements for the maintenance of these encroachments as long as they exist. These encroachments shall not alter the rights and obligations of Owners.
I purchased a condo in a 40 unit apartment building from the developer. It came with a parking space ("exclusive use common area") which was directly next to a maintenance room. I recently reviewed my disclosures and noticed that the maintenance room does not appear in the survey of the garage. Upon measuring my spot, I found that the wall was actually built well within the boundaries of my spot. Do I have any recourse? And would it be against the HOA or the developer?
I have copy and pasted some relevant sections from the CC&Rs below:
A. Owners' Nonexclusive Easements; Association Rights.
Every Owner has a nonexclusive easement of use, enjoyment, ingress, egress, and support in, to, and throughout the Common Area and any improvements or facilities on the Common Area. However, such nonexclusive easements shall be subordinate to, and shall not interfere with the right to use Exclusive Use Common Areas. Each such nonexclusive easement shall be appurtenant to the respective Condominium and shall pass with the title to the Condominium. Nonexclusive easements shall be subject to all of the rights and powers of the Association as described in Article 5, including, without limitation, the right to assign, rent, license or otherwise designate and control use of any parking spaces other than those which are Exclusive Use Common Areas appurtenant to a Unit.
C. Power to Grant Easements. Declarant or the Association shall have the power to grant and convey in the name of all the Owners as their attorney-in-fact (or in the name of the Association as to any property to which the Association holds title) to any Owner or other party easements and rights-of-way in, on, over, or under the Common Area for the purpose of constructing, erecting, operating or maintaining lines, cables, wires, conduits, or other devices for electricity, cable television, computer, internet, power, telephone and other purposes, public sewers, storm water drains and pipes, water systems, sprinkling systems, water, heating and gas lines or pipes, and any similar public or quasi-public improvements or facilities. However, a majority vote of the Owners is required before the Association or Declarant may conveyor otherwise transfer to any Owner fee title, easements, Exclusive Use Common Areas, leasehold estates, rights-of-way and other interests in the Common Area . However, a vote of a majority of the Owners is not required for a conveyance or transfer to an Owner for any of the purposes specified in Civil Code section 1363.07. Each Owner, in accepting a deed to a Condominium, expressly consents to such easements and rights of way and authorizes and appoints the Association and Declarant (as long as Declarant owns one or more Condominiums) as attorney-in-fact of such Owner to execute any and all instruments conveying or creating such easements or rights or way. However, no such easement can be granted if it would substantially interfere with the use, occupancy, or enjoyment by any Owner of his Unit or the Common Area of the Project unless approved by the vote or written consent of the holders of not less than sixty-seven percent (67%) of the voting rights of each class of Members and their first mortgagees.
D. Encroachment Easements.
Each Condominium has an easement over all adjoining Units and the Common Area for the purpose of accommodating any encroachment due to engineering errors, errors in original construction, settlement or shifting of the building, or any other cause as long as the encroachment exists. In no event shall a valid encroachment be created in favor of an Owner if it occurred due to his willful misconduct. In the event a structure is repaired or rebuilt, minor encroachments over adjoining Units and the Common Area shall be permitted and there shall be valid easements for the maintenance of these encroachments as long as they exist. These encroachments shall not alter the rights and obligations of Owners.