HOA At War Over Termite Treatment

I'm on the Board of Directors of an eight-unit townhome complex in California. We have a war raging over fumigation vs continuing local treatment for our growing termite problems, and the Board finds itself with each side threatening legal action against us if we don't do what they want. We have spoken to our HOA's lawyer (at more than considerable expense) and been assured that neither has a case and the Board is acting within its rights to make maintenance decisions. While we are confident that fumigation is the appropriate thing for the complex, we have reached a point where we are having trouble figuring out the appropriate way to deal with our problem owners. I was hoping to find out if anyone here has been through a similar situation, or had a suggestion for a resolution.

Our complex is twenty-one years old, and some units began seeing termite swarming of varying degrees approximately ten years ago. The Board had inspections done and fumigation was recommended, but the majority of the membership did not want it, so local treatment options were utilized in the affected units. By the time I moved in, this had been the practice for several years but the infestation problem was getting worse. In 2006, a new Board took a look at what was being spent on termite treatment and determined we had dug ourselves into a financial hole, as the HOA was funding all local treatment in each unit, not the owners. Unfortunately due to some large and unexpected repair expenditures that year, a special assessment larger than the 5% allowed without a vote was needed to fumigate. The vote failed, a new pest company was brought in, and local treatment continued as several units changed hands over the last few years.

Now we find ourselves with a two-year treatment contract expiring this August, and narrowly able to afford the fumigation without an assessment and without being financially irresponsible. We held two meetings with owners to explain the financial situation, show them why fumigation might be our only viable option left, and debate the pros and cons of each treatment. We wanted to let them speak their minds and be heard, but we also informed them that we would be making the final decision. Unfortunately one owner was so vehemently against fumigation that by the second meeting he threatened to move out of the complex if we went that way. He is an older gentleman, one of two remaining original owners, and believes that unless all of his possessions are removed from his home that his health will be harmed by the process. No one wanted to belittle his concerns and attempts were made to find solutions that would make him more comfortable, but he would not budge or compromise.

In the end, the owners were 5-3 in favor of fumigation, the Board was unanimous, and notice was sent announcing a start date in ten weeks. This anti-fumigation owner responded with an open letter to the Board e-mailed to all owners and residents accusing us of abuse of power, illegal decisions, and personal grudges against him. He vowed that he would not sign the authorization form required by the fumigation company and encouraged other owners to join with him in protest (to our knowledge none did). He stated that he would fight any attempts to bring legal action against him and would keep fighting us until he had closed escrow on a house and moved out. Only then would he allow us to fumigate.

We knew from our CCRs and Davis-Stirling that we were doing nothing wrong, but we also knew that it would take nothing short of a court order and possibly forced physical removal of this man to move forward. Our financial situation is delicately balanced, and to start an ugly and expensive war with this man could cause the other two "no" votes (other long-time owners and friends of his) to turn on us as well. So we announced a postponement of fumigation until August, hoping this man would see that we were trying to work with him and give him time to move.

At this point we began receiving angry e-mails from another gentleman who was furious with the three month delay. He is a newer owner and a lawyer and said he was legally informing us that he had hired an attorney to represent him and he was holding the Board collectively and individually responsible for all termite damage to his unit during our delay. We then got a letter from his lawyer with his demand that fumigation continue as previously scheduled in May or he would reserve the right to "take further action" against us.

Our HOA lawyer told us the pro-fumigation owner doesn't have legal cause to sue and the anti-fumigation owner doesn't have the legal right to refuse to cooperate, so we planned a new start date in August. Again the anti-fumigation owner sent an angry, open letter to the Board to everyone in the complex. He reiterated that he would not allow us to enter his unit until he had moved out and stated that this Board had destroyed the fabric of the community by rushing to fumigate, when if we had simply waited until next summer he would be gone and there would be no problem. Again he stated if we acted against him legally he would counter-sue the HOA and the Board members.

It has cost us $1000 for our lawyer to draft letters to each of these owners explaining our legal rights and their legal obligations. We feel confident we would win in court against the owner who refuses to cooperate, but at what cost to the HOA? We could potentially use up all our fumigation money with no idea when or if could be recouped from this owner. We feel that it is absolutely wrong for this man to hold the complex hostage and prevent those units that have pretty severe termite problems from getting proper treatment, but it is possible that if asked all but our one litigious pro-fumigation owner would probably be fine with postponing until next summer. So we could anticipate more harassment from him that would have to be addressed by our lawyer, and the other fellow might decide he's got a good way to prevent us from doing anything and not leave after all.

It is a really ugly situation, with the Board in the position of trying to do what's best for the complex as a whole, physically and financially, but two owners are demanding we only do what's best for them or risk expensive legal action. I sincerely apologize for the length of this post, and I'm hoping someone out there might think of something that perhaps we haven't.

Thank you for your time.
Tami

Thank you so much for the reply, Larry. Since we will require legal representation to file the paperwork to get the court order to force compliance, might that also be covered by our insurance? If it costs us thousands of dollars for the court proceedings, we've lost our fumigation money.

Unfortunately, insurance is a shield and not a sword so your association would have to pay to get a court order. Since there is a contractual relationship between the anti-fumigator and the association, the association's costs may be recovered.

What would happen if the association goes ahead with its plans and does not get a court order? I am not familiar with fumigation so I do not know what has to happen and what cannot happen. Will the fumigator proceed with the work knowing that there is one uncooperative resident? My first guess is that when the fumigator shows up and begins his work that the anti-fumigator is going to make himself scarce once he realizes that it's going to happen with or without his cooperation.

I would not delay the work until August because that date is based on the anti-fumigator's claim that he will be out by then. Plans have a habit of changing and when August comes around he may stil be there.

Thank you, Tim, it is indeed a rough one.

Larry, for fumigation to take place all people, pets, and plants must be removed from the structure for 2-3 days. Owners have to sign an authorization form for the fumigation company to enter their unit to do the work and turn over their keys. Our non-cooperative owner has promised he will not sign, will not turn over keys, and barricade himself in his unit if necessary. If he does not sign and does not leave, fumigation can not take place. A court order appears to be our only recourse to get his signature and cooperation at this point, and we already lost a big chunk of the money set aside for fumigation and security to the lawyer, who wrote one letter saying "You don't have the right to do this". He doesn't care, he says come at me, sue me, we'll let the courts decide when you can fumigate because I won't sign until I've closed escrow on a house and moved out.

Melissa, we brought out a representative from a pest control company for a meeting with all owners the last time this came up in 2006. Our anti-fumigation owner used it as a public forum to beat this guy up with "facts" he'd gotten off the internet and try to prove to everyone that we were taking our lives in our hands by even considering that option. With ownership changes since then, this gentleman and our other original owner are the only two who maintain health fears. The other 'no' vote simply doesn't want the inconvenience or to cover her own costs to move out for two nights.

So our options right now appear to be 1) figure out how to move forward in court without blowing all our money, 2)delay until next year and get this man to sign something vowing not to obstruct us again in return....which means our other owner who wants fumigation yesterday will spend the next year harassing and threatening us. Not to mention we will have to spend money on local treatment for another year, which we'd hoped to avoid.

Thank you all for your replies and thoughts.
Tami

Tami,

You have eight units and the structure is under attack by termites. If you do nothing, the structure will eventually collapse and each owner will be left with a mortgage on a pile of rubble. You will not be able to sell the units as no lender will issue a mortgage on a structurally defective building and if state law requires disclosure of known defects, no one will even make an offer.

As a practical matter the owners have little choice but to correct the problem and pay whatever it costs to do so. Therein lies the problem. The owners are willing to fix the problem only if they don’t have to pay extra to do it. Yeah, it’s inconvenient but there are few practical choices. There is no Big Brother to bail you out. You either pay whatever it costs to fix the problem or lose your investment in the property.

If the funds in your budget are not sufficient to pay for the termite treatment and the related costs, then the board of directors of your condo association needs to impose a special assessment to raise the funds and your owners need to pay.

You also need to deal with that Internet-surfing jackass that’s holding everyone hostage. He has challenged you to sue him. Remind him that if he is the defendant in a lawsuit, he will not close escrow on that home he plans to purchase. Remind him also that not only does the association have a cause of action against him but so do all seven of the other owners individually. Finally, let him know in no uncertain terms that his irrational behavior will justify the court to conduct a mental health evaluation that could result in, among other things, his unit being placed in the hands of a court-ordered receiver.

I usually do not condone the big guys burying the little guys in legal fees, but this is one owner I would have no qualms about bankrupting. My association has a bunch of members who are convinced that the government is deliberately spraying poisonous chemicals on us from high altitudes. Their source: the Internet. It is one thing to believe a bunch of nonsense and quite another to act on it in such a way that it harms others, as the owner in your association has done.

You need to move forward and if that means steamrollering over the anti-fumigator then make it happen.

Tami,

I guess the bottom line would be:

1) Does the Association have the authority to force individuals from their home for x amount of time to perform repairs.

2) If it does have the authority, does it have to pay damages incurred (cost of lodging, storage, etc.).

The first one, I believe that it's likely a court would rule in favor of. It's also possible that the Association could incur some responsibility for individual costs involved to the member (as one could argue negligence for not approaching the termite problem prior to the need for fumigation. Therefore, why not approach the issue this way:

Specify that the Board will pay for x nights of lodging at a specific hotel, x dollars for food loss and x dollars for storage. Then, since this was not budgeted for, impose a special assessment to pay for those damages.

Hold a special membership meeting to vote on if the Association should incur the expenses associated with lodging, etc. or if each individual should bare the costs involved directly. Let them know that a special assessment will need to be required to pay the costs. Yes, it seems to be counter productive, but at least you would have met any legal requirements by bringing the issue to the membership.

Tim

I think you have the answers right there: the association can make him get out while the fumigation is in progress and whatever he spends on moving, storage, and lodging are his expenses to bear alone. The only question I can raise now is whether "The association may cause" means that you can drag him out without a court order. Check with your local police to see what their take is on this as they will be the ones who get the 9-1-1 calls.

Larry - We do indeed have the law fully on our side in this fight. Unfortunately the law does not come cheap. I believe that for the fumigation company to move forward they require the signed authorization, as well as keys to all the units. Our attorney indicated that if Mr. Non-compliant refuses to sign that we would seek a court order forcing him to. At that point if he does not leave when fumigation is scheduled, the police will have to be called in to attempt to remove him. Based on the open letters he has written to the complex, we can see him having a field day with that, calling in the media to report on the poor old man forced out of his home so that toxic chemicals can be introduced that will cause him to fear for his life. It is so ugly and so unnecessary and causing so much strain for a Board simply trying to do the right thing.

John - I agree, and it would appear we have little choice.

Thank you again, everyone.

I would not worry about publicity. I have seen a few similar situations in the past and the resistant owner always comes off looking like a nutcase. In reality, the media has bigger stories to cover and he will get no ink.

As far as the fumigation company goes, the court order will serve as consent to treat the property and the court order authorizes the police to physically remove the resistant owner.

Going to court should be a slam-dunk. The only relevant facts are that the association has lawfully determined the need to fumigate, it needs to temporarily remove the owner, and the owner is refusing to go. His arguments as to the safety of fumigation will not likely be heard as that is a matter of policy that he should take up with the legislature or the pest control board.

Before going to court I would recommend emailing him and everyone else a copy of the statute. I would take that opportunity to remind him that being a defendant in a civil lawsuit may prevent the close of escrow on the new home he is purchasing and that he will likely have to pay all of the association's costs incurred to order him out while fumigating. I would not recommend any more letters from your attorney as 1) you have already done so without results, 2) it costs you money to have the attorney write, and 3) it will just further delay matters. Give the guy a deadline, say 24 hours, and then file against him without further delay.

Tami:

In reading an Arizona Court of Appeals opinion, I found reference to the following California opinion regarding the treatment of termites in a condominium. The case is Lamden v. La Jolla Shores Clubdominium Homeowners Ass’n, 980 P.2d 940 (Cal. 1999). It basically says that if the condo board has determined a course of action that the courts will not interfere. The following is taken verbatim from the Arizona opinion:

In Lamden, the plaintiff sued her homeowners association, alleging that its decision to “spot treat” for termites, as opposed to fumigating the entire building in which her condominium was located, diminished the value of her unit. 980 P.2d at 942. On review, the California Supreme Court noted that the declaration governing Lamden’s common interest development gave the development’s association broad discretion in deciding how to maintain the complex. Id. at 950. The court held that when a declaration gives an association discretion to select among various means to accomplish an obligation imposed by the declaration or by law, California courts will deferentially review the Association’s choice of means. Id. at 942.

“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.”

Id. (emphasis added). Finding that the decision to “spot treat” the termites did not violate the association’s obligations under the deferential standard of review it adopted, the court affirmed the superior court’s entry of judgment against the plaintiff. Id. at 950.

For your association, this should be about one hour or less in court. Your lawyer needs to prove that your association has determined a need to fumigate and that the defendant is refusing to remove himself from the premises during the fumigation. If those two facts are proven to the court's satisfaction, then the court will issue an injunction to permit your association to forcibly remove the defendant during fumigation. Any other nonsense that the defendant offers will be ignored for the purpose of the injunction.

Injunctions can often be issued on very short notice and a temporary restraining order can be issued without notice to the defendant.

A counter-suit will not likely delay your injunction. God only knows what your resident could claim in a countersuit but at this point he has suffered no damages so at best it is premature. The countersuit will, however, keep the case on the court's active calendar for months, so he will be in for a nasty surprise when August rolls around and the lender on his new home takes a powder because he is involved in a still-pending lawsuit.

I hope you will keep us posted on how this all turns out.

I asked for a termite inspection last year and we couldn't get one. Hooray for a HOA that keeps up on termite control.

Dean,

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