In California, the overwhelming majority of homes are built with wood framing, which means the structures are susceptible to termite damage. According to the United States Department of Agriculture, termites cause from $1 to $7 billion annually in damage to US homes. While Alaska doesn’t have termites, all other 49 states must deal with these wood-destroying pests.
While California law is helpful, sometimes the developer’s original CC&Rs do not adequately enable the HOA to deal with the challenges of termite prevention and damage repair.
Who is responsible for termite prevention and damage?
Civil Code Section 4780 states that the first source of responsibility comes from CC&Rs. If, as is usually the case, the CC&Rs are silent, per the section’s subpart “a” termite prevention and damage repair is the responsibility of the condominium, stock cooperative, and community apartment associations. However, per subpart “b” it is not the responsibility of planned development associations.
This statute can be problematic for attached style planned development associations. When a developer sets up an association as a planned development with homes attached to other homes (such as “townhomes” and “patio homes” for example), unless the CC&Rs provide the authority the HOA is unable to compel homeowners to submit to termite treatment, and those homes are prone to suffer avoidable progressive damage. One of my long-time townhouse-style planned development clients has seen all the owners in a single building band together to jointly procure treatment for their building, but that commendable action is extremely rare. Such HOAs should consult their counsel about amending the CC&Rs, because it makes no sense to leave such a matter to individual choice when it clearly affects the individual’s attached neighbors. To determine if your HOA is a planned development, review your CC&Rs and your deed – or consult legal counsel.
What if homeowners disagree with the board’s selected approach to termite treatment?
Not everyone agrees with the best approach to termites but for the sake of the HOA community someone must have the final say. So long as the HOA board consults the appropriate expertise, the courts defer to the HOA board regarding maintenance and repair decisions, under the 1999 Lambden v. La Jolla Shores Clubdominium decision.
What if occupants refuse to vacate for termite treatment?
Under Civil Code Section 4785, the HOA after giving at least 15 but not more than 30 days written notice may cause the occupant’s “temporary, summary removal” from the home. “Summary removal” in this regard does not mean the HOA can physically force the occupants out on the day of the treatment. The legal process must still be invoked and a court order should be obtained so that local law enforcement can secure the vacation of the property on the day of treatment. This means that HOAs will need to plan on seeking the emergency order in this regard at least several days ahead of the scheduled treatment date.
While one would assume that licensed pest control businesses will normally handle termite eradication, if for some reason the HOA does not use licensed personnel, know that Civil Code Section 4777 requires the HOA to make very specific disclosures to all impacted residents.
Homeowners; work together against this common enemy, which are the pests weakening your homes.
Read any California statute at leginfo.legislature.ca.gov.
