Responsibility and Treatment Decision
Responsibility for Damage and Treatment. Unless CC&Rs provide otherwise, the association is responsible for repairing termite damage in all common area structures. In addition, the association is responsible for treating termites and other wood-destroying pests or organisms in the common areas. (Civ. Code § 4780) Pests that might appear in an individual unit would be the unit owner's responsibility to treat unless the infestation originates through the common areas. Because balconies are a common area for the exclusive use of an owner, the association is responsible for maintaining, repairing, and replacing the structural elements. As such, it would be the association's responsibility to inspect for and treat termites and repair any structural damage caused by them. (See Balcony Inspections)
Method of Treatment. The treatment method (tenting versus spot treatment) and the materials used are at the board's discretion.
Where a duly constituted community association board, upon reasonable investigation, in good faith and with regard for the best interests of the community association and its members, exercises discretion within the scope of its authority under relevant statutes, covenants and restrictions to select among means for discharging an obligation to maintain and repair a development's common areas, courts should defer to the board's authority and presumed expertise. Thus, we adopt today for California courts a rule of judicial deference to community association board decisionmaking that applies, regardless of an association's corporate status, when owners in common interest developments seek to litigate ordinary maintenance decisions entrusted to the discretion of their associations' boards of directors.
Common sense suggests that judicial deference in such cases as this is appropriate, in view of the relative competence, over that of courts, possessed by owners and directors of common interest developments to make [21 Cal.4th 271] the detailed and peculiar economic decisions necessary in the maintenance of those developments. A deferential standard will, by minimizing the likelihood of unproductive litigation over their governing associations' discretionary economic decisions, foster stability, certainty, and predictability in the governance and management of common interest developments. Beneficial corollaries include enhanced incentives for essential voluntary owner participation in common interest development governance and the conservation of scarce judicial resources. (Lamden v. La Jolla Shores)
Vacating the Property
Notice to Vacate. The association must give notice not less than 15 days nor more than 30 days before the date of the temporary relocation. The notice shall state the reason for the relocation, the date and time of the beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the relocation. (Civ. Code § 4785(b)) If the board selects fumigation, occupants must sign an "Occupants Fumigation Notice and Pesticide Disclosure" form. (California Code of Regulations, Title 16, Section 1970.4.) See "Right to Enter Units."
Temporary Summary Removal. Associations may cause the temporary removal of occupants during the treatment of termites (or other wood-destroying pests or organisms). (Civ. Code § 4785(a)) If a resident refuses to vacate, the association can go to court for an order that the person vacate the property. Because the association will be seeking temporary, summary removal of occupants, pre-litigation ADR is not required. (Civ. Code § 5950(a)(3)) In an unpublished decision, an association decided to tent and fumigate their buildings for termites. A homeowner refused to cooperate, claiming there were viable treatment methods that did not require tenting. The association filed an ex parte application for a summary removal order under Civil Code § 4785 to take immediate possession of the unit for the limited purpose of conducting the tent fumigation. The court granted the application and issued a removal order. (see Golden West Patio Homes v. Cortez)
Relocation Costs. The cost of alternate housing and temporary relocation during the repair and maintenance of the areas is borne by the owner of the separate interest affected. (Civ. Code § 4775)
Attorney's Fees. In the Golden West case, the association was awarded its attorney fees and costs pursuant to Civil Code § 5975 and the CC&Rs. The Court of Appeal noted that the prevailing party in litigation is the one who prevailed on a practical level by achieving its main litigation objectives. Here, the Association's application for a temporary removal order was an action on a contract as it related to the association's duties under the CC&Rs to maintain the common area of the development. The association was the prevailing party in the action, as the court granted the application for the removal order, thereby enabling the association to proceed with the fumigation of the development's structures. Accordingly, the association was entitled to recover its attorney fees under the CC&Rs. The court upheld the award of attorneys' fees and costs. (see Golden West Patio Homes v. Cortez)
Inspection Reports
California law does not require that homes be inspected for wood-destroying organisms before they are sold. Even so, most mortgage companies require it to protect the collateral for their loan. In addition, almost all purchase agreements include a termite contingency, which allows the buyer to withdraw from the transaction if there is significant termite infestation and damage. Termite inspectors look for signs of wood-destroying pests, including termites, carpenter ants, rot fungi, and wood-infesting beetles. In addition, they look for evidence of pest activity, such as damaged wood, dead insects, and termite tubes. They then issue a written report describing every accessible part of the house they inspected and where they found signs of infestation or infections, if any. Lenders typically require certification from a pest control company that the structure is free of infestation or infection and that all recommendations have been completed before the close of escrow. The costs of the inspection and repairs are generally paid by the seller, but are negotiable.
Common Area Pest Control
Associations are obligated to maintain the common areas. (Civ. Code § 4775) In condominium associations, this includes controlling the invasion of pests into common area structures, such as rodents and termites.
Notice Required. An association or its authorized agent that applies any pesticide to a separate interest or to the common area without a licensed pest control operator shall provide the owner and, if applicable, the tenant of an affected separate interest and, if making broadcast applications, or using total release foggers or aerosol sprays, the owner and, if applicable, the tenant in an adjacent separate interest that could reasonably be impacted by the pesticide use with written notice as prescribed by Civil Code § 4777.
Separate Interest. At least 48 hours before application of the pesticide to a separate interest, the association or its authorized agent shall provide individual notice to the owner and, if applicable, the tenant of the separate interest and notice to an owner and, if applicable, the tenant occupying any adjacent separate interest that is required to be notified.
Common Areas. At least 48 hours before application of the pesticide to a common area, the association or its authorized agent shall, if practicable, post the written notice described in paragraph (1) in a conspicuous place in or around the common area in which the pesticide is to be applied. Otherwise, if not practicable, the association or its authorized agent shall provide individual notice to the owner and, if applicable, the tenant of the separate interest that is adjacent to the common area. Resource: Pest Control Board.
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