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June 11, 2007
Termites - Who Is Responsible?
Many people in HOAs have difficulty with responsibility for termites. The question often arises, who is responsible for treatment and eradication?
Question recently submitted: "In our documents, no reference is made to the term Planned Unit Development but that is what the board claims we are. We have lived here for more than 20 years and have had several instances of termites in one of the three exterior walls of our unit. The first two times, the HOA paid for eradication - the termites were in the experior wall. Then, the third time, the HOA refused.. but the work was still under warranty so further treatment was completed. The next time the Board refused to pay and there was no warranty. The HOA attorney says Civil Code ( Stirling Act) says that each unit owner is responsible for termites within their unit but we believe we are still dealing with an exterior wall. The termite company that I called said the same thing our "in-house" (association) termite company said - that the building can't be tented, we cannot tear open the exterior wall, the treatment will always be a "band-aid " approach by treating from within my unit to through the wall to exterior "dead space" before the stucco... and the cost is more than $500!!! The HOA has done nothing to treat these termites recently from the exterior, even though it is a known termite area...what can we do?"
Basically the answer is this: unless the CC&Rs (aka Declaration) say otherwise, in California the Davis Stirling Act - Civil Code Section 1364 essentially (paraphased) says that in a planned development, the owners are responsible for reasonable termite treatment and prevention with regard to their lots and in a condominium development, the association is responsible for reasonable termite prevention and treatment in the common area (which is usually the building except for the airspace that are the units). The scheme can be changed by a vote of the members to amend the documents.
There is a leading case in California that stands for the proposition that if the Board has a plan for dealing with termites, even though a spot treatment which may need to be repeated, it is not required to accept the demand of an owner for a different (and in the case more invasive) treatment such as tenting the units. The court applied the business judgment rule essentially saying that it would not second guess the Board on this subject.
The most common problem for owners in a planned development is how to contend with neighbors who take no measures to protect their units and will not willingly participate in a treatment for the entire building. Because of the law and documents that impose an obligation on the individual owners to take reasonable measures with regard to termites and pests, one owner who wanted to initiate treatment for his or her dwelling but needs to treat the neighbors as well to make the treatment effective would probably be able to get some relief in small claims court or superior court for the cost of any work done that was needed (the owner would have to prove this), which the neighbors refused to approve or contribute.
In any event, this is just general guidance/information. Legal counsel should be consulted if you need a legal opinion. There are factors that may enter into the final determination as to who is responsible.
Posted by Beth Grimm at June 11, 2007 9:11 PM