Association Usually Must Pay for Termites in Common Area

QUESTION: Our association’s declaration does not have any guidelines regarding the responsibility to treat a termite infestation. We have 36 units in our complex. Six units on the top floor are infested and localized treatment during the past two years has not eradicated the termites. The infestation is in the common area and obviously spreading.

It seems that the board of directors should be responsible for acting on behalf of the association to protect the building’s structural integrity. Does this issue require a majority vote of the owners?

ANSWER: Here in California, the Civil Code defines the responsibility for termite abatement if the association’s declaration ignores the issue. Condominium associations, community apartment projects (own-your-own apartments) and cooperatives have different responsibilities than planned unit developments (PUDs). You must refer to your declaration to see what form of association you have or check the explanations of the different types of common interest developments as defined in Civil Code Section 1351.

The responsibility for termite abatement appears in Civil Code beginning with Section 1364(b) (1) as follows:

“In a community apartment project, condominium project or stock cooperative, as defined in Section 1351, unless otherwise provided in the declaration, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood destroying pests or organisms.

“(2) In a planned development, as defined in Section 1351 unless a different maintenance scheme is provided in the declaration, each owner of a separate interest (unit) is responsible for the repair and maintenance of that separate interest as may be occasioned by the presence of wood destroying pests or organisms. Upon approval of the majority of all members of the association, the responsibility for such repair and maintenance may be delegated to the association, which shall be entitled to recover the cost thereof as a special assessment.

“(c) The costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.”

In subsequent paragraphs, the Civil Code also provides that the association has the authority to require that occupants vacate the building for termite treatment and it specifically states the association’s responsibility for giving sufficient and proper notice to occupants. An occupant is described as an owner, resident, guest, invitee, tenant, lessee, sublessee or other person in possession of the unit.

The notice to temporarily vacate must be given not less than 15 days nor more than 30 days prior to the treatment date. The notice must state the reason for the requirement to vacate the unit, the date and time that treatment will be started and the date and time for termination of the treatment.

Notice to the occupants must be given as follows: 1) personal delivery or first-class mail delivery of a copy of the notice to the occupants at the unit address and 2) mail delivery of the notice must go to the unit owner if different than the occupants.

Extra Charge Should Be Only for Services

Q: I know that many of the rules and regulations of our condominium association are discriminatory and, therefore, probably unenforceable. I am being charged 50% more than other owners for my monthly assessment because I rent out my unit to a tenant.

The association refuses to obtain legal advice. I have refused to pay the extra 50% and I have asked them to take me to court so that we could resolve the matter. The association board says that they will just wait until I try to sell the unit and then they will hold up the sale until I pay the association the unpaid balance.

What is my legal recourse?

A: The association cannot adopt rules and regulations that conflict with the provisions of the declaration of covenants, conditions and restrictions (CC&Rs;) or the bylaws. Rules that conflict with these other legal documents are not enforceable. Associations should seek legal advice in order to ensure that their rules and regulations are in compliance with federal and state laws and the association’s legal documents.

If you want to take legal action, contact an attorney who specializes in community association law. The attorney could write a letter to the board of directors citing the provisions in the legal documents which explain the method for calculating assessments.

Usually assessments are either an equal amount for all owners or the amount is based upon the percentage of ownership (square footage of the units). Any additional charges levied against your unit, other than a monetary penalty for violation of the CC&Rs; or rules, should be based upon actual services provided. For example, if your tenant needs an extra common area key or garage door opener, the association could charge you a reasonable amount for providing those items. You should not be charged any more than any other owner would be charged for the same service.

I hope that you understand that when you lease to your tenant, the tenant is then entitled to the rights to use the amenities or facilities of the association. Once the unit is rented, you do not have the right to swim in the pool, use the exercise room or wash your laundry in the common area laundry room. If you are using these common facilities and the association has levied the additional charge as a penalty, then there is a larger legal issue that needs to be addressed.

It is unfortunate that your association’s board of directors has decided not to consult an attorney. Paying for an attorney’s preventive legal advice is always less expensive than defending against legal action when an owner decides to challenge the association.

Get Some Facts Before Hiring an Attorney

Q: My homeowners association has not had an annual meeting to elect a board of directors for over two years. Aren’t associations required to have annual meetings?

The president has been giving preferential treatment to certain people. The board has paid for projects that benefit them personally. I feel that the president should be removed from office.

The intercom system that had not been operating for quite some time was recently repaired. The electrician installed the wiring in the hallway so that it is visible rather than being inside the wall. The transformer is plugged into an outlet right next to my door at eye level. After I notified the board president that the installation was unacceptable, the electrician came back and placed a piece of wood over the wiring. Now it looks worse than before and the transformer inside my unit is still exposed.

I think it is time for me to contact an attorney. What else can you suggest?

A: First, the association should be having annual meetings to elect board members. You can verify the association’s meeting requirements by reading your bylaws.

It will be very difficult to remove the board president if you are the only person who is dissatisfied. I urge you to find out when the next annual meeting is going to occur. Talk with some of your neighbors about their opinions of the current board members and their willingness to serve on the board. You will then be able to decide whether to work toward electing new people.

If you feel that the installation of the wiring is unsafe or improper, you have the right to call a city building inspector to have the installation checked.

Hickenbottom is a past president of the Greater Los Angeles chapter of the Community Associations Institute (CAI), a national nonprofit research and educational organization. She welcomes readers’ questions, but cannot answer them individually. Readers with questions or comments can write to her in care of “Condo Q&A;,” Box 5068, Thousand Oaks, Calif. 91360.