Adler

The issue decided in this case is that a “community apartment project” cannot be created informally. A community apartment project arises when an undivided interest in land is coupled with the right of exclusive occupancy of any apartment located thereon, We hold that the right to exclusive occupancy, which is a prerequisite to the creation of a community apartment project, must appear on the face of the deed in order for such an estate to be created.

Sheila Elphick appeals from a municipal court unlawful detainer judgment entered against her after the trial judge refused to allow the jury to consider her proposed affirmative defense that plaintiffs had created a community apartment project in violation of Berkeley’s Municipal Code. We affirm.

I. Facts and Procedure

Plaintiffs Alan H. Adler, Albert Adler and Judith Greenblatt purchased a residential property in Berkeley consisting of a main building containing two three-bedroom units and an adjacent three-bedroom cottage. They paid $240,000 for the property and took title as tenants in common. The Adlers and Ms. Greenblatt intended to occupy separate apartments on the property. Greenblatt gave the tenants in the unit…