by Joel Ellinwood, AICP

Developers and the general public think of townhouses as dwellings built on separate lots with common walls shared with neighboring property owners, as being more like single family homes. Each unit has a direct connection to the earth below and sky above. Condominiums, on the other hand, are perceived as being cubicles within a larger structure, and only a shared interest in the real estate on which the structure is located and common areas within and around the building.

However, California does not have a separate legal definition of townhouses. The legal definition of condominiums in is broad enough to cover virtually all townhouses, assuming that they are attached units with common interest in roofs and exterior walls for each building. It is found in Civil Code section 1351 (f), which reads:

(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.

Section 1351 is part of the Common Interest Development Act, Civil Code sections 1350 – 1378 also known as the “Davis-Stirling Act” (“CIDA”) for its original sponsors in the legislature. This law governs:

* disclosures on sale or transfer of units
* homeowners associations requirements for organization, operations and governance
* ownership rights and interests
* civil actions and liens, including special rules for construction defect litigation
* limitations and rights of owners to make improvements to units

Through careful design and drafting of legal descriptions a townhouse may alternatively be considered a “planned development” under CIDA. That term is defined as:

(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.

In a planned development, “separate interest” means a separately owned lot, parcel, area, or space.

We can only conclude that by and large townhouses will either be condominiums or planned developments as defined by CIDA. The only exception would be townhouses constructed on an existing public street with no common areas or homeowners association, which is difficult to achieve for a development parcel of any size in today’s regulatory environment. Both condominiums and planned developments are subsets of what CIDA terms common interest developments. All the other provisions of CIDA apply to all common interest developments generally. Other statutes may distinguish between the two. (See, e.g. Subdivision Map Act (Gov. Code, §§ 66410 et seq.) or California Multi-Family Development Accessibility Requirements on Page 1 of this issue). Whether those statutes would be construed consistently with CIDA definitions remains to be seen.

Joel Ellinwood is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.