HOA says need to be tented for termites

I LIVE IN A SMALL TOWNHOUSE COMMUNITY, 7 BUILDINGS WITH 4 UNITS EACH. WE HAVE HAD A RESERVE LINE ITEM FOR TERMITES AND USED IT TO PAY ORKIN FOR A SPOT TREATING POLICY.

ONE UNIT HAS TERMITES INSIDE THE HOME, AND ANOTHER IN THE SAME BUILDINGS FACIA. ONE OTHER HOME IN ANOTHER BUILDING HAS THEM IN THE FACIA TREATABLE BY SPOT TREATMENT.

HOWEVER THE BOARD HAS DECIDED THAT THE RESERVE IS NOT REALY A RESERVE AND WANT TO TENT ALL THE BUILDINGS BECAUSE THEY WANT TO REROOF. THE ROOFER WHO RECOMMENDED THE EXTERMINATOR RECOMMENDED IT. THE COMPANY HE RECOMMENDS HAS NOT INSPECTED OUR HOMES.

WERE ORKIN DID AND FOUND 27 OF THE 28 UNITS CLEAR INSIDE AT TIME OF INSPECTION.

CAN THE BOARD USE THE TERMITE RESERVE TO TENT INSTEAD OF RENEWING ORKINS AGREEMENT WITHOUT MEMBERSHIP APPROVAL, AND CAN THEY FORCE US TO HAVE OUR HOME TENTED EVEN THOUGH NO ONE IN OUR BUILDING HAS TERMITES?

THANK YOU

ALAN

Apparently you posted this subject twice, so I'll post here and you can look at this one for subsequent responses.

First of all, please stop typing in all caps – it’s a form of shouting and hard on the eyes.

Next, check your documents to see how much leeway your board has on the budget and hiring vendors – you’ll likely find it doesn’t need homeowner approval to enter into contracts with any vendor (or terminate them).

What did the board say when you asked about the reserve “not really being a reserve?” I suspect they’re thinking pest control is more of a maintenance issue that should be covered under your operating budget, whereas replacing a roof is a reserve item. Reserves are used for major repair or replacements of community components – in this case that would be your roofing, sidewalks – things that you aren’t replacing year after year.

It could be the portion of the reserves originally designated for termite control will be used for something else in the reserve budget. You may want to take a close look at your budget and perhaps your documents (again) to see if there are any definitions on what is a reserve item, what reserves are to be used for, etc. If you’ve had a reserve study (and you should), the reserve study specialist may have noted pest control isn’t a true reserve item.

It would be a good idea for the board to get a second opinion (perhaps a third) from different vendors as to what to do about the unit with the current termite problem. The problem with those little buggers is that they could spread and that could be why the roofer recommended tenting (if the termites are all over the place, they’ll chow down on a new roof and you’re back to more expenses in getting rid of them and even more pest control). Perhaps the board wants to avoid any future problems with the other buildings so it wants to tent the buildings.

As you suspect, tenting isn’t cheap and somewhat inconvenient, but you don’t want to deplete reserves for one thing. What happens if you have problems with another building around the same time another reserve replacement becomes necessary, such as siding replacement? Do you want to be faced with a special assessment to pay for all of it – in addition to paying regular assessments that should be funding the reserves anyway?

Discuss this with your board and see what it says – the answer could be as simple as getting a second opinion and then presenting the findings to the community so they’ll know what their options are.

Your documents, especially the CCRs, generally dictate what the association is responsible for vs. the homeowners, and like I said earlier, reserves really should be used for big ticket repairs and replacement, like roof or siding replacement because you don't need to do that every year (at least you shouldn't have to). You haven't said if your association has had a reserve study - does it say anything about this topic? If you don't have a reserve study, it would be a good idea to get one so you can make that distinction and ensure your reserves are being used for what is really needed.

I'm not sure I would have placed termite control in reserves so your board is probably correct in removing it. You still need to check your documents to see what they say regarding the budget and what the board is authorized to do with and without homeowner approval (that may be in the Bylaws and CCRs) - usually the boards are given a certain amount of leeway as to where something should go in the budget, although I agree it would have been a good idea to let the homeowners know that effective X date, spot treating wouldn't be covered and why, and what would be done in the future.l

The board likely has the power to select who does what maintenance on the units, whether it's Orkin or anyone else. I'm concerned about the proposal to relinquish the exterminator (whoever that is) of third party liability. I would be concerned that if they sub out the work and the subcontractor doesn't get paid, the subcontractor can then go after the association for the money and possibly slapping liens on everyone's homes if they don't get it. Your board should have the association attorney review this as well as look around for another exterminator.

And yes, it sounds like they need to get some more opinions on what should be done about these termites before tenting, spot treating or doing anything else. So once again, what did they tell you when you asked your questions and if they're digging in their heels, are you and the other homeowners honked off enough to look at your documents a third time to see what can be done to recall them or vote them out at the next annual meeting? Do you have anyone willing to step up and take over if you're successful?

One more thing - if you've had spot checks to address the termite problems, it seems it's time to take a long view and see what else can be done to get rid of them once and for all. Whoever you choose to hire as an exterminator, you might want to ask if they can look around the buildings and grounds and see what can be done. I just read the following on one website:

Termite treatments can be the most complex treatments of any household pest management issue (and you'll never get rid of them entirely, but can prevent them from taking up residence in your home). Depending on the species of termite, the colony’s location(s) and the extent of infestation, your professional may need to use more than one treatment method. These methods often require specialized tools and techniques. For example, carefully formulated soil treatments may need to be applied via rods inserted under your house.

If you want to see the last reserve studies and need to make the request in writing, do it. Creating a paper trail is a good idea and there shouldn’t be any hesitation to give homeowners copies of association records. As for your cancelled meeting, the reason is somewhere between something really came up and the president doesn’t want to respond because he doesn’t know how or just doesn’t want to, which is far more serious.

You’re also correct to be concerned about this exterminator – hasn’t inspected all the buildings and doesn’t have a license or has renewed it (we’re halfway through September already), and of course, there’s that business about wanting everyone to relinquish him from third party liability and give him permission to hire subcontractors without giving the association a lien release from those subcontractors. I’m beginning to wonder if the president is the one really driving all this.

That being said, I know you meant well and the contractor you talked to appears to be more reputable, but it’s not your place to get a bid on your own – the board is supposed to be hiring contractors and it should be smart enough to get at least 3 bids for expensive work and do its due diligence by checking for licenses, performance bonds, if appropriate.
Now, since the president seems to be stonewalling you, you need to start talking to the other board members. I’ve always felt anyone should be able to go to any board member and get complete and accurate information on why something is or isn’t being done. Have you talked to them? If so, what was the response?

If it appears there’s a lot of groupthink going on because no one wants to piss off the president, you’ll need to start talking to your fellow homeowners and see what they think about all this. What a bunch of homeowners start attending meetings and demanding answers from the board, that’s when you start seeing change. Sometimes the change means the homeowners will have to vote out or recall do nothing, incompetent or just plain unethical power hungry types. That also means someone else (including you) will have to be willing to step up and do the work instead.

So, if you’re looking for a simple solution to this or for someone else to do the heavy lifting, sorry, but life doesn’t work that way, especially in HOA land. Sometimes, these things don’t get changed unless and until YOU get up and start doing the heavy lifting. This is your home and ultimately, you need to take responsibility for what happens with it. So get on with it and I wish you luck.

One more thing, I understand what you're saying about old CCRs - my community is working with a really old set as well, but no one seems to want to take on that project. The last time we tried, half the people didn't respond to anything and the others were honked off about a rental restriction that had been proposed. We also neglected to have people get their ballots notarized when submitting them (as required by our CCRs) so if the proposals went through, they would stick.

Today, we have a bunch of off-site owners who barely manage to submit proxies so we can meet quorum for an annual meeting, so the board does what it can, although so much more could be done with updated documents. If you do manage to get a new board, that might be among the new projects it wants to take on and there are several conversations on this site about the best way to go about it.

Sorry, but what do you mean by "we agreed under duress holding the Association liable for any damages since they never responded to our concern regarding Assignability and Waiver of Liability in the agreement they insisted we sign"? How did the board decide to handle the termite issue? Are the homeowners riled up enough about all this that they'll pursuing a recall or plan to vote out the current board (at least get rid of the president)?

Though I objected to the tenting for the following reasons:

only one to the seven buildings had live termite infestation upon inspection
tenting has no residual benefits (the day after termites can return)
4 of the 7 buildings were under contract with Orkin to spot treat for termites
the company the board selected never inspected our home
the company they selected did not provide a complete Certificate of Insurance
the document they insisted we sign allowed the contract to be assigned with no qualifications and relinquished the company from any liability

Since the board threatened to sue if we did not sign, and never addressed our concerns, we agreed under duress holding the Board liable should any damages or accident occur

I would have told the Board to Make My Day!!! Keep in mind in the future nobody can "coerce" you to do something against your will ... most likely a Judge would have thrown that out his door. Next time give a feather for those who do not deserve the whole bird