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 responsibility of the unit owner to treat unless the source of the infestation is through the common areas.
Method of Treatment. The method of treatment (tenting versus spot treatment) and the materials used in the treatment 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 enhancement of the incentives for essential voluntary owner participation in common interest development governance and conservation of scarce judicial resources. (Lamden v. La Jolla Shores.)
Notice to Vacate. The association must give notice not less than 15 days nor more than 30 days prior to 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.)
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, the Golden West Patio Homes Association decided to tent and fumigate their buildings for termites. A homeowner refused to cooperate with the planned fumigation because he believed 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, seeking 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 it achieved its litigation objective when the court granted the application for the removal order, 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.)
Balconies. Because balconies are common area for the exclusive use of an owner, the structural elements are the associations duty to maintain, repair and replace. As such, it would be the association's responsibilityh to inspect and treat for termites and repair any damage to the structure caused by the termites. (See Balcony Inspections.)
Termite 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 so as 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 in the event of significant termite infestation and damage. Termite inspectors look for signs of wood destroying pests such as termites, carpenter ants, rot fungus 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 normally require certification from a pest control company that the structure is free of infestation or infection and all recommendations completed before the close of escrow. The costs of the inspection and repairs are generally paid by the seller but is negotiable. To find out if a particular property has been inspected in the past two years go to www.wdopestboard.ca.gov.
Membership Recourse. If the membership disagrees with the board's termite treatment method, it has recourse via the ballot box. Members can elect directors who reflect their preferences. This can be done by submitting a petition to recall the board or by running candidates at the next general election that believe a different form of termite treatment should be used.
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