Termites who is responsible

A unit owner found a large deposit of tiny wood debri twice next to the exterior wall of their exclusive use patio. This is what seems to be classic termite infestation. The Owner has asked the Board to take responsibility for it based on precedence for exclusive use repairs conducted against other unit over the past two years. We are in California and per Davis Sterling 1364B the unit owner would be responsible but there seems to be some caveats. In the past two years the HOA has performed the following exlusive use repairs at HOA cost without HOA membership vote.

1) Repaired a Units external 2nd story balcony that was leaking water into the unit. Repairs included resurfacing patio, resealing patio, and repairing roof (without repainting) inside unit where water damage occured.

2) Replacing Air Conditioner wood structures on roof. Each unit has a AC unit on the roof that was on a single wood platform in the middle of the roof between the two associated units. Per our CC&R's the Unit with the A/C unit had exlusive use rights to the platform. The HOA Board voted to replace at HOA Cost the rotting platforms with a single platform that was situated on roof of specific unit.

3) Resurfacing with sealing of exlusive use patio for all units

4) Repainting parking lines in condo garage for all units (Lines are in exclusive use parking spot of each unit)

5) Power Washing each units exclusive use parking spot

Based on the precedence of repairs would the Board be obligated to perform the request of the Homeowner of inspecting and remediating if necessary the termite damage?

Thanks

David,

If termites are in one unit they are likely already in other units or will be soon. Termites are structural pest, meaning that if left untreated they will devour the entire wood framework of your buildings. This is an entirely different situation than other insect pests, such as cockroaches, that while icky do not cause damage to your buildings.

This is a structural issue that has nothing to do with exclusive use areas. The termites are not reading the plans and do not know where the property lines are.

If the board is aware of the termites (and it sounds like it is) the board has a fiduciary duty to act to protect the structure. If you somehow conclude that this is a homeowner problem, the owner will do whatever he can personally afford on whatever schedule he chooses. That could very well be nothing. The result will be that your building will suffer catastrophic damage and you and the other board members will spend some time explaining to a superior court jury why you should not be held personally liable.

Depends on if your separate homes or not. Plus if termites are eating that wood it means it may not be eating the home's wood. They will go to the easier food source. Removing that wood is a good thing but also means driving the termites towards the home.

There should be a termite bond on the house. The owner should be responsible for pest control unless the HOA already pays for it. Although I would not recommend a HOA necessarily buy pest control unless looking at their own circumstances and situation.

This is just a difference between the homeowner using their money versus using the HOA money that is kicked in by everybody. Let them know there could be a special assessment involved if your HOA does need to do the repairs if there isn't enough money in the budget to do so.

Say, David, you wrote that the debris is "next to" the patio wall. Is the debris inside the patio area or outside of it? If outside, is that area exclusive use common area or common area?

Is the wall wood; are your buildings wood?

My reading of CA Civ. Code 1364, which you cited, seems to say that everything in that section depends on what your governing documents-- probably your CC&Rs--say. Glen mentions this too. The membership vote aspect of 1364 seems to apply only to termites, again depending on your governing documents, not garage power washing/parking place striping, etc.

Our CC&Rs for our multi-story condo units say that we owners are responsible for the interior of our balcony/decks/patios, the HOA for the exterior of these. But our HOA has, indeed, made some repairs to, for instance, balconies, e.g buckling floor tiles caused by the common area underpinnings that support the balconies being flawed.

Our board interviewed 4 HOA law firms last week and each one, when I asked them, said that the most common interpretation problem involves WHO is responsible for exclusive use common area maintenance and repairs.

Since it sounds like you have attached units or several units that are attached, I tend to think Matthew's approach makes sense.

If your CC&Rs aren't clear about this, I think your board should consult with your HOA attorney. Are you on the board, David?

Finally, you might want to make sure the debris is from termites and not, say, ants or something else.

(In other states, I think I've seen the term "limited use" common areas instead of "exclusive use" on this forum.)

To answer some questons to keep this going

Townhome, 2 buildings on single lot with subterranean condo style garage, (1 building 6 linear units) (1 building two side-by-side)

Note in at least 9 years I have been here no external termite remediation has been conducted in the common areas.

walls are concrete so I'm thinking coming from inside walls. Thus, who is responsible inside walls where wood is located? I.E. HOA is responsible for common area up to the walls but not inside walls but termites are coming from the outside in?

I ask about precendence as the Board never asked the other owners about the repairs they conducted against exclusive use areas which contradict the requirement of a vote of the HOA to approve such expenditures thus has set precedence for subsuquent repairs. How could they say they approved repair for one units exclusive use area but not another with it potentially being a conflict of interest or showing favortism toward units that had components repaired. Especially the one where they reapaired an external exclusive use 2nd story balcony based on complaint of water damage inside unit.

I tried to attach pic that wass 199KB in size as GIF and JPEG with no luck.
The location is a exclusive use patio
HOA does not have a termite bond but has walls in insurance

No other reports by other owners but no inspection done yet by either party
CC&R's state that the repair and maintenance of an Owner's Unit as may be occassioned by the presence of wood-destroying pests or organisms shall be govered by section 1364(b) through (e) of the California Civil Code

So I'm a little confused as the Davis-sterling website states: Responsibility for Treatment. Unless CC&Rs provide otherwise, the association is responsible for treating termites and other wood-destroying pests or organisms in the common areas. Civil Code §1364(b). Termite inspection reports are required upon sale of units.

Whereas California Civil Code states

[New: Civ. Code §4775(a)]

(b)

(1) 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 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. [New: Civ. Code §4780]

Seems to me the first thing to be done is to have the buildings inspected to see if there is a termite problem, then you can argue who is responsible to pay. Hint unless you catch them real early, if there is an infestation, it is probably in multiple units.

I agree.

My experience with termites is that it is best if you are having regular termite inspections in all units. When I lived in a single-family home, our neighbor have rather obvious termite problems from looking at her roof. I couldn't to anything about that, but we did have regular termite inspections. We had to treat areas a couple of times.

When I was in a condo, we asked for termite inspections. Many companies will do units for an extra $20 or so while doing the common areas and exclusive use common areas. However, the board refused to have inspections (except for one board member) and didn't bother to tell the rest of the members about the termite inspector's visit.

There were indeed termites. When we sold almost a year after we requested termite inspections, they did find termites in our rafters of the roof. We requested a meeting on this, but the board refused. So we had it spot treated. From what I can see from the termite inspection records, no other inspections have been made. We did notify the other residents.

The better treatment for out situation would have been tenting. Oddly enough, our unit included two of the board directors.

From what I recall about the CC&R, the roof is the responsibility of the HOA. It wasn't clear to whom the rafters belonged, but the rafters connect to the next unit. The exterior of the exclusive use common areas were the responsibility of the HOA which is why the HOA has decorative authority and authority over any construction/repair over the outside of the balconies.

So I would again emphasize that the whole condo complex should be inspected and regular inspections of all the units would be the best preventative measure. You'd be surprised what happens above your ceiling or under your carpets.

Glen I completely understand the issue of I will either pay directly or indirectly through association fee's.

Regarding our CC&R's they are completely silent as to where the starting point of a unit begins. It does not say it start on the interior walls or the exterior walls. This has been a contention of the Board, who will not modify the CC&R's to clarify this on past request, in regards to plumbing which run through these same walls.

I completely agree on the issue of entire property be evaluated and if necessary remediated but knowing our Board they will not act in this manner to safeguard the property for future concerns.

Having said that it does say in our CC&R that the Association is responsible for termite remediation affecting the common area/exlusive use common area. So in my case the said wall, where I found possible termites, is an exterior wall thus a common area. The big question is if termites in the wall does HOA responsibility end at that wall or my interior wall.

| wood |
Internal structure external wall

I'm surprised too, David, that your CC&Rs don't specify the boundaries of your separate interest residential units. Ours do for our twin tower condo units.

Along with reviewing your deed as Glen suggests, you might try getting a copy of your Condominium Plan that was filed with the CA DRE (Dept. of Real Estate) by your developer. It may be many, many pages, but ours gives the boundaries of everything including our deeded exclusive use parking spaces and deeded exclusive use storage lockers (which are "fenced" and in several large storage locker areas in our underground garage).

Your Board may not ever have seen the Condo Plan. Our Board had not until quite recently and our HOA is 12 years old.

Or it could be carpenter bees. Carpenter bees often leave a pile of wood debri. Termites tend to leave mud tunnels.

Carol - could be carpenter bee's but I haven't seen a single bee on our property in ages.

yes we have bylaws that include director qualifications, frequency of Board meetings, and cummulative voting but I'm saying
1) More restrictive requirements like participating in at least 3 of the 4 Meetings, required at annual etc.. which our bylaws don't clarify
2) Frequency - 3 months - which is fine but never followed so would like to see more teath to hold Board accountable for not following this requirement
3) Cummulative voting - would liket see this removed - 1 vote for 1 unit that should be it.

etc...

Thanks

David

From my experience, this would be the responsibility of the association.

In regards to the items you like to see changed, that would require a change of the Bylaws. As far as frequency of meeting, by law, meeting must be held every three month to approve the financials. More teeth, recall or replace the Board. In your situations, Bylaws would be easier to amend than CCRs. People will want to protect their investment at all cost.