Need Urgent Help With MY Condo HOA!

KurtD2 (California)
Posts: 26

Posted:

Hello,

I, the homeowner, have exterior termite repairs and exterior beehive removal issues at my condominium.

For the beehive removal request made to me by the HOA management company, when I asked why the CC&R's did not state that beehive/pest removal is homeowner responsibility, the management company stated that this is what the board president told them.

The exterior termite repair is a similar issue.

My question is, are there typically some other type of governing documents other than the CC&R's?

I am a bit suspicious that the board president is just saying these are homeowner responsibilities and may not have any such legally binding regulation in place.

Again this is for a condo.

Thanks very much!

AidylP1 (California)
Posts: 108

Posted:

There are many types of CCRs. Some are one-size-fits-all all. The board president could be right that a beehive is not covered by the HOA because it's not specified in the CCRs.

Exterior termite damage in the common area, per civil code, is required to be covered by the HOA.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

When you want the HOA to pay for something it means ALL members are going to pay for it. A HOA is ONLY funded by it's owners for it's owners.

Honestly, I am not sure the HOA would be responsible for the termite or bees. When I purchased my house it had to have a termite bond. Which it is to be inspected for termites and a treatment in place. The Bee's no one can control or prevent much. They decided your property was attractive enough to make it their home.

When I moved into my house, had let me dog out to play. Went to check on him. He had scratched a hole into the back of my house! Damaged like 3 siding boards and exposing insulation. Turns out Beagles are good at termite detection. Which even the termite company didn't find and had termite protection around the perimeter. Found out later from previous owner this was an area previously had termites.

The repair costs were on my dime not the HOA's. They could tell me had to fix it because it was an eye sore. However, they didn't have to pay for it. Cost of being a homeowner.

Former HOA President

AidylP1 (California)
Posts: 108

Posted:

Quote:

Posted By MelissaP1 on 02/08/2024 5:03 PM
When you want the HOA to pay for something it means ALL members are going to pay for it. A HOA is ONLY funded by it's owners for it's owners.

Honestly, I am not sure the HOA would be responsible for the termite or bees. When I purchased my house it had to have a termite bond. Which it is to be inspected for termites and a treatment in place. The Bee's no one can control or prevent much. They decided your property was attractive enough to make it their home.

When I moved into my house, had let me dog out to play. Went to check on him. He had scratched a hole into the back of my house! Damaged like 3 siding boards and exposing insulation. Turns out Beagles are good at termite detection. Which even the termite company didn't find and had termite protection around the perimeter. Found out later from previous owner this was an area previously had termites.

The repair costs were on my dime not the HOA's. They could tell me had to fix it because it was an eye sore. However, they didn't have to pay for it. Cost of being a homeowner.

What part of the California Civil Code about termites did you not understand?

KerryL1 (California)
Posts: 14,550

Posted:

Ignore Melissa's reply. She missed the part where you wrote "condominium."

Aidyl is correct. In the common areas, the HOA is responsible for eliminating the termites and repairing any damage they caused. Owners have to pay for their own relocation during the termiting process.

Is there nothing in your CC&Rs about termites, Kurt? Are you sure??? Why do you think this is"urgent?" Aren't other neighbors alarmed?

Over the years, my Condo high rise has had beehives in the common areas several times and the manager always calls a firm to remove them

I don't think anyone can expect that the CC&Rs could list every type of COMMON AREA pest that might become present. But, first, is the beehive IN the common area, or in your "exclusive use common area," say in your balcony or deck area? Below is a question similar to yours to a CA HOA Law Firm and their opinion.

For the entire thing, see https://www.davis-stirling.com/HOME/W/Wasp-Nest
"QUESTION: We have wasps in the common areas but management refuses to do anything about them. What can we do? "

"ANSWER: The duty to keep the common areas safe ultimately rests with the association through its board of directors, not the manager. The manager may be taking direction from the board not to do anything about the wasps...... If the wasps are yellow jackets and they are nesting in the common areas, the association needs to call pest control. The board has a duty to reasonably protect the safety of residents."

Based on their legal opinion and my own experience, the Association should have the beehive removed at the HOA's expense. Also not that the reply to the question above is about "the Board." Presidents do not make policy, boards do.

So, what to do? Maybe others have ideas. I guess start with a short serious letter sent to the Board, return receipt requested asking them to order the manager to remove the beehive as it's a safety hazard in the community. Ask for a reply to your request.

And/or bring the topic up at the open forum portion of the next Board meeting an ask the Board to remove this safety hazard.

Re: the termites, do the same in a separate letter citing the above from Davis-stirling.com AND your CC&Rs if avaialable.

NA1 (Massachusetts)
Posts: 190

Posted:

With pests, there are specific attributes to them that affect whether it is a common problem. If you have termites in your unit and it's a condo, then there is almost always a common area problem. Some termite types only nest in the ground and cross the exterior walls. It can be hard to find the tubes they build. When I have seen them treated it's been by poisoned bait in the ground. Also, termites travel far and,like some other insects common to condos (roaches and bedbugs come to mind), if they are in one unit they are likely to be in others. If you don't address the whole problem then they won't be eliminated.

Your county almost certainly has resources you can use to educate the board. I suggest educating the manager too, as they can help educate the board.

Here is LA county's page on termites https://acwm.lacounty.gov/termite-treatments-and-fumigations/

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KurtD2 on 02/08/2024 3:12 PM

Hello,

I, the homeowner, have exterior termite repairs and exterior beehive removal issues at my condominium.

For the beehive removal request made to me by the HOA management company, when I asked why the CC&R's did not state that beehive/pest removal is homeowner responsibility, the management company stated that this is what the board president told them.

The exterior termite repair is a similar issue.

My question is, are there typically some other type of governing documents other than the CC&R's?

I am a bit suspicious that the board president is just saying these are homeowner responsibilities and may not have any such legally binding regulation in place.

Again this is for a condo.

Thanks very much!

Kurt, you should have copies of your Declaration, Articles of Incorporation, By-laws, Operating rules. All of these are subject to CA Civil Code sections 4000-6150 (Davis-Stirling Act) and the corporations code.

KurtD2 (California)
Posts: 26

Posted:

Hi,

Okay, thanks very much!

I will review the CC&R's more carefully to confirm.

The beehive is a small expense; the termite repairs are a huge expense.

Please see the attached photo. The bees are in the exterior stucco column and the wood eave and exposed wood beam are indicative of where the termites are on my condo unit.

So when we say "common area" does that mean anything outside of the interior walls of the condominium unit such as wood facia and wood eaves attached to the unit in question?

Thanks again!

KurtD2 (California)
Posts: 26

Posted:

Hi,

Okay, thanks very much!

I will review the CC&R's more carefully to confirm.

The beehive is a small expense; the termite repairs are a huge expense.

Please see the attached photo. The bees are in the exterior stucco column and the wood eave and exposed wood beam are indicative of where the termites are on my condo unit.

So when we say "common area" does that mean anything outside of the interior walls of the condominium unit such as wood facia and wood eaves attached to the unit in question?

Thanks again!

KurtD2 (California)
Posts: 26

Posted:

Thanks Kerry!

I'm going to re-read the CC&R's but it does seem like that for termites, there is a Civil Code which would supersede any CC&R provision to make the homeowner responsible.

But just to confirm, when you say "common area" does that include wood eaves and exposed beams attached to the exterior of my condo structure?

The bee issue is somewhat urgent as they swarm and create a risk to other local residents.

Thanks very much!

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By NA1 on 02/09/2024 2:07 AM
With pests, there are specific attributes to them that affect whether it is a common problem. If you have termites in your unit and it's a condo, then there is almost always a common area problem. Some termite types only nest in the ground and cross the exterior walls. It can be hard to find the tubes they build. When I have seen them treated it's been by poisoned bait in the ground. Also, termites travel far and,like some other insects common to condos (roaches and bedbugs come to mind), if they are in one unit they are likely to be in others. If you don't address the whole problem then they won't be eliminated.

Your county almost certainly has resources you can use to educate the board. I suggest educating the manager too, as they can help educate the board.

Here is LA county's page on termites https://acwm.lacounty.gov/termite-treatments-and-fumigations/

Thanks for your reply.

So at this point my main question is, is the exterior wall attached to my condo unit, be it the stucco column where the bees are located or the wood eaves and exposed beams (attached to my unit) where the termite repairs are needed, considered "common area".

Do you have any insight on this?

Thanks!

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By AidylP1 on 02/08/2024 4:13 PM
There are many types of CCRs. Some are one-size-fits-all all. The board president could be right that a beehive is not covered by the HOA because it's not specified in the CCRs.

Exterior termite damage in the common area, per civil code, is required to be covered by the HOA.

Okay so I re-read the CC&R's and they state that the Board can add, amend or delete rules and regulations with a simple majority vote and that those rules and regulations will have the same force as if contained in the CC&Rs.

So I think the only way around that is if there is a civil code which would supersede the CC&R regs. This is for San Diego County.

Also need some clarification as to if my condo's exterior wall is considered "common area".

Do you have any idea about that?

Thanks!

MarkS42 (North Carolina)
Posts: 70

Posted:

The exposed beams are a bit trickier. You really need to look at your documents to find the definition of "Unit". We had a situation where the termites came from below and traveled up the drain pipes. The HOA is our case was responsible for treating the termites and any damage to the interior wall studs. The drywall though is considered part of the unit and in our condos, the owner is responsible for repairs to the drywall and painting.

KerryL1 (California)
Posts: 14,550

Posted:

Common areas are everything the HOA is obligated to maintain, repair & replace. Near the front of your CC&Rs (declaration) you should see sort of a dictionary with a lot of definitions including "common area."

In your CC&Rs, there' also an Article about Maintenance Obligations that tell you what the HOA is obligated to repair

The citation that I gave you is state HOA laws that are in CA Civil Codes. (As cite by Terri; counties do not matter). You can trust Aidyl & me on this point about termites. The HOA is responsible to eliminate termites & repair & replace all of the common area wood.

IS there termite damage inside your condo, or not?

Is you HOA multi-story condos, as perhaps in a large buildiling? Or are they all one story?

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/09/2024 10:15 AM
Common areas are everything the HOA is obligated to maintain, repair & replace. Near the front of your CC&Rs (declaration) you should see sort of a dictionary with a lot of definitions including "common area."

In your CC&Rs, there' also an Article about Maintenance Obligations that tell you what the HOA is obligated to repair

The citation that I gave you is state HOA laws that are in CA Civil Codes. (As cite by Terri; counties do not matter). You can trust Aidyl & me on this point about termites. The HOA is responsible to eliminate termites & repair & replace all of the common area wood.

IS there termite damage inside your condo, or not?

Is you HOA multi-story condos, as perhaps in a large building? Or are they all one story?

Thanks very much!

My unit and all other units are single story.

Some localized spray/injection treatment for termites is needed in the attic, but no damage requiring filling or replacement of wood on the inside, just exterior facia, eaves, and support beams need filling and replacing.

Here is the CC&R text regarding "Common Area". I am still unclear as to whether the roof eaves, facia, and exposed exterior beams are considered "Common Area"

"Common Area" shall mean that portion of the property shown on the final recorded track map for the property, which is owned by the association for the common use and enjoyment of the members of the association, and any other property to which the association holds title or over which the association holds an easement for the benefit of the members. The common area to be conveyed to the association prior to or concurrently with the first conveyance of a lot to an owner other than declarant."

NA1 (Massachusetts)
Posts: 190

Posted:

Quote:

Posted By KurtD2 on 02/09/2024 9:13 AM

Posted By NA1 on 02/09/2024 2:07 AM
With pests, there are specific attributes to them that affect whether it is a common problem. If you have termites in your unit and it's a condo, then there is almost always a common area problem. Some termite types only nest in the ground and cross the exterior walls. It can be hard to find the tubes they build. When I have seen them treated it's been by poisoned bait in the ground. Also, termites travel far and,like some other insects common to condos (roaches and bedbugs come to mind), if they are in one unit they are likely to be in others. If you don't address the whole problem then they won't be eliminated.

Your county almost certainly has resources you can use to educate the board. I suggest educating the manager too, as they can help educate the board.

Here is LA county's page on termites https://acwm.lacounty.gov/termite-treatments-and-fumigations/

Thanks for your reply.

So at this point my main question is, is the exterior wall attached to my condo unit, be it the stucco column where the bees are located or the wood eaves and exposed beams (attached to my unit) where the termite repairs are needed, considered "common area".

Do you have any insight on this?

Thanks!

Pests are health and safety related, and because most pests ignore unit demising walls, in a multi-unit building they are usually an association problem. I think our local health code backs that up, but I haven't read it in some time. You could check your local health/building code also.

As for the repairs, you need to check the CC&R. Generally, in a condo (multiple units in a single building), if it's the building envelope that's an association matter. The association needs to make sure the building is properly repaired, and the envelope services everyone, even if the damaged part is outside your unit. But any repairs to the inside of your unit are usually at your expense. Sometimes there are exclusions like windows or balconies.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KurtD2 on 02/09/2024 10:37 AM

Posted By KerryL1 on 02/09/2024 10:15 AM
Common areas are everything the HOA is obligated to maintain, repair & replace. Near the front of your CC&Rs (declaration) you should see sort of a dictionary with a lot of definitions including "common area."

In your CC&Rs, there' also an Article about Maintenance Obligations that tell you what the HOA is obligated to repair

The citation that I gave you is state HOA laws that are in CA Civil Codes. (As cite by Terri; counties do not matter). You can trust Aidyl & me on this point about termites. The HOA is responsible to eliminate termites & repair & replace all of the common area wood.

IS there termite damage inside your condo, or not?

Is you HOA multi-story condos, as perhaps in a large building? Or are they all one story?

Thanks very much!

My unit and all other units are single story.

Some localized spray/injection treatment for termites is needed in the attic, but no damage requiring filling or replacement of wood on the inside, just exterior facia, eaves, and support beams need filling and replacing.

Here is the CC&R text regarding "Common Area". I am still unclear as to whether the roof eaves, facia, and exposed exterior beams are considered "Common Area"

"Common Area" shall mean that portion of the property shown on the final recorded track map for the property, which is owned by the association for the common use and enjoyment of the members of the association, and any other property to which the association holds title or over which the association holds an easement for the benefit of the members. The common area to be conveyed to the association prior to or concurrently with the first conveyance of a lot to an owner other than declarant."

Do you have a link to that California Civil Code for termites?

AidylP1 (California)
Posts: 108

Posted:

https://www.davis-stirling.com/HOME/T/Termite-Treatment

KerryL1 (California)
Posts: 14,550

Posted:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY: "Civil Code § 4780. Wood-Destroying Pests.
(a) In a community... condominium project....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.

So.... the only reason you'd have to pay for the termite work on the exert common would be IF your CC&Rs (declaration) say Owners are obligated to pay for termite elimination and reprise of the common areas.. When the PM says ownrs must pay, ask them to show you the language in the CC&Rs that says you must pay.

The wood trim, eaves, gutters, etc. on the exterior of your condo is "common area," just as the entire exterior stucco or whatever comprises the exterior surfaces are common area. They are not your obligations to maintain, repair or replace.

I again advise you to read the Maintenance Article (Chapter) in your CC&Rs, which might be more specific about who is responsible for what.

Davis-stirling.com (my citations above) is an excellent source of info about CA statutes for HOAs. It's compiled by an HOA law firm. It has an excellent Index, so I just scrolled to Termites to get the exact legal citation for you. That's where I got the citation about wasps, which is so similar to your bees problem.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By AidylP1 on 02/09/2024 12:32 PM
https://www.davis-stirling.com/HOME/T/Termite-Treatment

I think I'm sunk, haha.

The code here: https://www.davis-stirling.com/HOME/T/Termite-Treatment and here: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY both state "unless otherwise provided for in the declaration..." and in my CC&R declaration there is a clause which states "with a majority vote, the Board can add, amend, or delete any regulations and it will have the same effect as if it was contained in the declaration.

I'm sure the Board voted on this and made these costs the homeowner's responsibility.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/09/2024 12:36 PM
https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY: "Civil Code § 4780. Wood-Destroying Pests.
(a) In a community... condominium project....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.

So.... the only reason you'd have to pay for the termite work on the exert common would be IF your CC&Rs (declaration) say Owners are obligated to pay for termite elimination and reprise of the common areas.. When the PM says ownrs must pay, ask them to show you the language in the CC&Rs that says you must pay.

The wood trim, eaves, gutters, etc. on the exterior of your condo is "common area," just as the entire exterior stucco or whatever comprises the exterior surfaces are common area. They are not your obligations to maintain, repair or replace.

I again advise you to read the Maintenance Article (Chapter) in your CC&Rs, which might be more specific about who is responsible for what.

Davis-stirling.com (my citations above) is an excellent source of info about CA statutes for HOAs. It's compiled by an HOA law firm. It has an excellent Index, so I just scrolled to Termites to get the exact legal citation for you. That's where I got the citation about wasps, which is so similar to your bees problem.

I think I'm sunk, haha.

The code here: https://www.davis-stirling.com/HOME/T/Termite-Treatment and here: https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY both state "unless otherwise provided for in the declaration..." and in my CC&R declaration there is a clause which states "with a majority vote, the Board can add, amend, or delete any regulations and it will have the same effect as if it was contained in the declaration.

I'm sure the Board voted on this and made these costs the homeowner's responsibility.

DeanJ
Posts: 1,786

Posted:

Condo boards try this crap. Instead of having reserves for this they pass the cost to individual homeowners. Go talk to an attorney.

KerryL1 (California)
Posts: 14,550

Posted:

No, Kurt, you are not "sunk." The honest-to-gawd law that two of us have cited says the association MUST remediate, etc. termite issues in the common area unless your declaration says otherwise. Your declaration, you say, is silent and says nothing.

The only way your Board can make owners pay for all the termite stuff is to amend your CC&Rs to state that Owners must pay for yak, yak. But, see the amendment part of your CC&Rs, usually towards to back, which requires probably 66 or 75% of all owners to approve. Well, owners will not, of corse!, approve such an amendment.

Now the Board can pretend it can make a "regulation," but it would NOT be valid. If the PM or Board says there IS such regulation, ask them to show you. Regulations and rules must be in writing and available to owners.

If you are disinclined to approach the Board as mentioned way above, and and are too shy to ask other others to join you, then I suppose you could follow Dean's advice and lawyer up. But, unlike Dean, I never advise "legal" until owners confront boards and ask for evidence that owners must pay.

KerryL1 (California)
Posts: 14,550

Posted:

Dean thinks termite work should be a reserve component? Why? Inspections, etc., are part of our operating budget.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/09/2024 7:00 PM
No, Kurt, you are not "sunk." The honest-to-gawd law that two of us have cited says the association MUST remediate, etc. termite issues in the common area unless your declaration says otherwise. Your declaration, you say, is silent and says nothing.

The only way your Board can make owners pay for all the termite stuff is to amend your CC&Rs to state that Owners must pay for yak, yak. But, see the amendment part of your CC&Rs, usually towards to back, which requires probably 66 or 75% of all owners to approve. Well, owners will not, of corse!, approve such an amendment.

Now the Board can pretend it can make a "regulation," but it would NOT be valid. If the PM or Board says there IS such regulation, ask them to show you. Regulations and rules must be in writing and available to owners.

If you are disinclined to approach the Board as mentioned way above, and and are too shy to ask other others to join you, then I suppose you could follow Dean's advice and lawyer up. But, unlike Dean, I never advise "legal" until owners confront boards and ask for evidence that owners must pay.

I will approach them in writing which is my preferred method of communication.

But my CC&R's do have this clause:

"with a majority vote, the Board can add, amend, or delete any regulation (from the CC&R) and it will have the same effect as if it was contained in the declaration"

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By KurtD2 on 02/10/2024 7:42 AM

Posted By KerryL1 on 02/09/2024 7:00 PM
No, Kurt, you are not "sunk." The honest-to-gawd law that two of us have cited says the association MUST remediate, etc. termite issues in the common area unless your declaration says otherwise. Your declaration, you say, is silent and says nothing.

The only way your Board can make owners pay for all the termite stuff is to amend your CC&Rs to state that Owners must pay for yak, yak. But, see the amendment part of your CC&Rs, usually towards to back, which requires probably 66 or 75% of all owners to approve. Well, owners will not, of corse!, approve such an amendment.

Now the Board can pretend it can make a "regulation," but it would NOT be valid. If the PM or Board says there IS such regulation, ask them to show you. Regulations and rules must be in writing and available to owners.

If you are disinclined to approach the Board as mentioned way above, and and are too shy to ask other others to join you, then I suppose you could follow Dean's advice and lawyer up. But, unlike Dean, I never advise "legal" until owners confront boards and ask for evidence that owners must pay.

I will approach them in writing which is my preferred method of communication.

But my CC&R's do have this clause:

"with a majority vote, the Board can add, amend, or delete any regulation (from the CC&R) and it will have the same effect as if it was contained in the declaration"

Any operating rule has to be consistent with the language of the Declaration. If the Declaration itself says nothing on the subject, they can't make rules on the subject. As Kerry wrote, it would take a majority vote of the membership, likely a large majority.

KerryL1 (California)
Posts: 14,550

Posted:

Please cite the entire clause exactly as it's written and also tell me what the name of the Article is where this clause is. Articles are like chapters in your CC&Rs:

"with a majority vote, the Board can add, amend, or delete any regulation (from the CC&R) and it will have the same effect as if it was contained in the declaration"

This wording looks very strange to me. I haven't seen, based on many years following this forum, any CC&Rs that permit the Board alone to many ANY changes whatsoever to the CC&Rs.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Kurt

Typically an association has 3 types of documents. Covenants (Deed Restrictions) that typically take 2/3rds (or more) of all owners agreeing to change. Bylaws that typically take 51% (or more) of all owners agreeing to change. Rules and Regulations (R&R's) that the BOD alone can make and/or change. R&R's cannot over ride Covenants nor Bylaws. As an example a R&R can dictate when a pool is open but it cannot close the pool permanently.

KerryL1 (California)
Posts: 14,550

Posted:

JohnC reminds me that even more important, CA state law requires HOAs to take care of termite issues. No HOA Board can override the state law.

Kurt, at Davis-stirling.com, see "Hierarchy of Documents" in the Index.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/10/2024 1:04 PM
JohnC reminds me that even more important, CA state law requires HOAs to take care of termite issues. No HOA Board can override the state law.

Kurt, at Davis-stirling.com, see "Hierarchy of Documents" in the Index.

Thank you Kerry. I just sent the Board a letter today citing the CA Civil Code for termites and showed them a photo of the exterior stucco column inside which the beehive is located.

Here are a couple relevant excerpts I found in the CC&R Declaration today.

ARTICLE 10 - MAINTENANCE & REPAIRS (PAGE 36 SECTION B)
In addition to the maintenance upon the common area, the Association shall provide maintenance upon the exterior of each lot which is subject to assessment under Article 6 hereof, as follows: exterior paint, repair, replace and care, roofs, gutters, downspouts, exterior building surfaces…..”

ARTICLE 5 - POWERS & DUTIES OF THE ASSOCIATION (PAGE 16 SECTION 4)
The power to adopt, amend or repeal by majority vote of the board, such rules or regulations as the Association deems reasonable. …..In the event of any such conflict between the Association and any such provisions of this Declaration, or the articles or bylaws, the provisions of the Association rules shall be deemed to be superseded by the provisions of this Declaration, Articles or Bylaws to the extent of any such inconsistency.

In the Article 5 provision above, I previously only read the first part as the second part was contained on the bottom of the following page.

Also interesting, the Declaration is just a scan of a poor-quality photocopy and there are several pages which either have a diagonal line running from the top left to the bottom right of the entire page or an "X" across the content of the entire page with no other comments or citations. The Article 10 page content I indicated above, has a diagonal line through it. This certainly cannot qualify as a valid modification of the Declaration could it?

I will wait for the Board reply to my letter and then update everyone on this thread. Thanks very much!

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/10/2024 10:37 AM

Please cite the entire clause exactly as it's written and also tell me what the name of the Article is where this clause is. Articles are like chapters in your CC&Rs:

"with a majority vote, the Board can add, amend, or delete any regulation (from the CC&R) and it will have the same effect as if it was contained in the declaration"

This wording looks very strange to me. I haven't seen, based on many years following this forum, any CC&Rs that permit the Board alone to many ANY changes whatsoever to the CC&Rs.

Here are a couple relevant excerpts I found in the CC&R Declaration today.

ARTICLE 10 - MAINTENANCE & REPAIRS (PAGE 36 SECTION B)
In addition to the maintenance upon the common area, the Association shall provide maintenance upon the exterior of each lot which is subject to assessment under Article 6 hereof, as follows: exterior paint, repair, replace and care, roofs, gutters, downspouts, exterior building surfaces…..”

ARTICLE 5 - POWERS & DUTIES OF THE ASSOCIATION (PAGE 16 SECTION 4)
The power to adopt, amend or repeal by majority vote of the board, such rules or regulations as the Association deems reasonable. …..In the event of any such conflict between the Association and any such provisions of this Declaration, or the articles or bylaws, the provisions of the Association rules shall be deemed to be superseded by the provisions of this Declaration, Articles or Bylaws to the extent of any such inconsistency.

In the Article 5 provision above, I previously only read the first part as the second part was contained on the bottom of the following page.

Also interesting, the Declaration is just a scan of a poor-quality photocopy and there are several pages which either have a diagonal line running from the top left to the bottom right of the entire page or an "X" across the content of the entire page with no other comments or citations. The Article 10 page content I indicated above, has a diagonal line through it. This certainly cannot qualify as a valid modification of the Declaration could it?

I will wait for the Board reply to my letter and then update everyone on this thread. Thanks very much!

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By DeanJ on 02/09/2024 6:35 PM
Condo boards try this crap. Instead of having reserves for this they pass the cost to individual homeowners. Go talk to an attorney.

I prefer to first send a few letters as letters and any responses will provide a solid document paper-trail and it also serves as sort of an informal "discovery" process by allowing the other party to counter my claims. This way I can first see what I am up against.

KerryL1 (California)
Posts: 14,550

Posted:

Good that you found both citations, Kurt; you've learned a lot quickly. Kudos.

I think you're right that the diagonal lines on some areas of your CC&Rs don't mean anything. If you want to be certain, your CC&Rs are recorded with your county, and you can see it there. Article 10 is almost the same as in my CC&Rs and is, so far as I know, very typical of condos. It's unimaginable that owners would vote to remove it!

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By KerryL1 on 02/09/2024 7:01 PM
Dean thinks termite work should be a reserve component? Why? Inspections, etc., are part of our operating budget.

If you live in a condo, you do not own the building, you own the space inside the building. This issue is not ants and roaches. Termites damage the common element and are the responsibility of the HOA.

Normally Boards do not budget for unanticipated maintenance, but they should have adequate reserves to pay for termite control. In a well operated HOA, you have more than one reserve account and one is just for an unexpected emergencies.

TerriS6 (California)
Posts: 3,284

Posted:

DeanJ, you sound just like Melissa from Alabama.

KerryL1 (California)
Posts: 14,550

Posted:

Dean, please review your own reserve study's explanation of the criteria that must be met for something to be listed in the study. Also read the newest standards for reserve studies authored in '23 by a peanal of reserves experts and, I think, avail through CAI.

Sorry, Kurt, to join Dean on his distraction from your problem.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/12/2024 10:08 AM
Dean, please review your own reserve study's explanation of the criteria that must be met for something to be listed in the study. Also read the newest standards for reserve studies authored in '23 by a peanal of reserves experts and, I think, avail through CAI.

Sorry, Kurt, to join Dean on his distraction from your problem.

UPDATE: (FEB-12): So today I received a document from my current HOA management company which was evidently was sent to me by the Board in reply to my recent letter questioning their position that I am responsible for exterior termite repairs. That document is dated 2008 and was sent to association "Members" from the HOA management company at that time (different than the current management company).

That document has a checklist of various items and indicates the entity responsible, either HOA or Owner. For the item "Exterior wood, stucco" they indicated "Owner" is responsible. The cover letter attached to this checklist states that the HOA management company at that time, had their lawyer review and confirmed that it is was prepared according to California law.

My questions: (1) Does the current CA law possibly supersede the CA law in 2008? (2) Is there somewhere I can get legal opinion for a reasonble fee? (3) is there a way to upload photos to this forum?

Thanks everyone for your help!

KurtD2 (California)
Posts: 26

Posted:

UPDATE: (FEB-12): So today I received a document from my current HOA management company which was evidently was sent to me by the Board in reply to my recent letter questioning their position that I am responsible for exterior termite repairs. That document is dated 2008 and was sent to association "Members" from the HOA management company at that time (different than the current management company).

That document has a checklist of various items and indicates the entity responsible, either HOA or Owner. For the item "Exterior wood, stucco" they indicated "Owner" is responsible. The cover letter attached to this checklist states that the HOA management company at that time, had their lawyer review and confirmed that it is was prepared according to California law.

My questions: (1) Does the current CA law possibly supersede the CA law in 2008? (2) Is there somewhere I can get legal opinion for a reasonble fee? (3) is there a way to upload photos to this forum?

Thanks everyone for your help!

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KurtD2 on 02/10/2024 1:39 PM

Posted By KerryL1 on 02/10/2024 1:04 PM
JohnC reminds me that even more important, CA state law requires HOAs to take care of termite issues. No HOA Board can override the state law.

Kurt, at Davis-stirling.com, see "Hierarchy of Documents" in the Index.

Thank you Kerry. I just sent the Board a letter today citing the CA Civil Code for termites and showed them a photo of the exterior stucco column inside which the beehive is located.

Here are a couple relevant excerpts I found in the CC&R Declaration today.

ARTICLE 10 - MAINTENANCE & REPAIRS (PAGE 36 SECTION B)
In addition to the maintenance upon the common area, the Association shall provide maintenance upon the exterior of each lot which is subject to assessment under Article 6 hereof, as follows: exterior paint, repair, replace and care, roofs, gutters, downspouts, exterior building surfaces…..”

ARTICLE 5 - POWERS & DUTIES OF THE ASSOCIATION (PAGE 16 SECTION 4)
The power to adopt, amend or repeal by majority vote of the board, such rules or regulations as the Association deems reasonable. …..In the event of any such conflict between the Association and any such provisions of this Declaration, or the articles or bylaws, the provisions of the Association rules shall be deemed to be superseded by the provisions of this Declaration, Articles or Bylaws to the extent of any such inconsistency.

In the Article 5 provision above, I previously only read the first part as the second part was contained on the bottom of the following page.

Also interesting, the Declaration is just a scan of a poor-quality photocopy and there are several pages which either have a diagonal line running from the top left to the bottom right of the entire page or an "X" across the content of the entire page with no other comments or citations. The Article 10 page content I indicated above, has a diagonal line through it. This certainly cannot qualify as a valid modification of the Declaration could it?

I will wait for the Board reply to my letter and then update everyone on this thread. Thanks very much!

UPDATE: (FEB-12): So today I received a document from my current HOA management company which was evidently was sent to me by the Board in reply to my recent letter questioning their position that I am responsible for exterior termite repairs. That document is dated 2008 and was sent to association "Members" from the HOA management company at that time (different than the current management company).

That document has a checklist of various items and indicates the entity responsible, either HOA or Owner. For the item "Exterior wood, stucco" they indicated "Owner" is responsible. The cover letter attached to this checklist states that the HOA management company at that time, had their lawyer review and confirmed that it is was prepared according to California law.

My questions: (1) Does the current CA law possibly supersede the CA law in 2008? (2) Is there somewhere I can get legal opinion for a reasonble fee? (3) is there a way to upload photos to this forum?

Thanks everyone for your help!

KerryL1 (California)
Posts: 14,550

Posted:

WHAT is the name of this so-called "document," Kurt?* If the letter for your current PM does NOT say it was sent by the or "on behalf" of the Board, then it did NOT come from the Board. The attached "document" sounds like an Appendix or Exhibit to your CC&Rs. If so it MUST be recorded with the County. If so, you should see a county recorder's stamp on it. IF it is a valid document, the Owner would have been required to vote on it se Ince it seems to amend or change your CC&Rs. ONLY owners, as explained above may change or amend the CC&Rs.

Does it make ANY references to your REAL "governing documents," e.g., your CC&Rs? Does it make ANY references in it to the CA Civil Code about termites that we've supplied for you.

No need for photos. State Civil Code supersedes everything else and it, and your own CC&Rs, say the HOA is obligated to make repairs to the common areas. (I'll bet all condo CC&Rs say the HOA is responsible for exterior repairs unless the owner busted something themselves.)

Did you not read the "Hirearchy of Documents" at Davis-stirling.com?

Others may advise you to seek a lawyer at this time, but I do not. There are other steps to take. You have not, so far as I can tell, had any direct communication with the Board. We can't know if you PM is being honest with you. They are ONLY directed by the Board. You haven't asked the Board at an open board meeting their reasoning for not following Civil Code on this topic.
Would you mind sharing with us the letter that you did send to the Board? Redact you HOA name, etc. It could be there's different wording that might help you.

Another step is IDR. This might be described in your CC&Rs. See definitions per the beginning. It IS described in a required (by CA Civil Code) letter you receive annually from your Board that contains a whole lot of information. It's called something like the Annual Budget and Reserves Report and Policy Statements." It might be quite lengthy--even 20 pages. It was due to owners 30 days before your fiscal year began. Davis-stirling.com also explains IDR

IDR is Internal Dispute Resolution and if you request it, the Board must comply. You'd meet with a director to two to discuss this disagreement.

Now if you want to skip some steps and find a lawyer or take other legal means it will cost you a lot of time and possibly a lot of money.

* It s doesn't mater if it was a different PM. PMs do NOT make policy decisions; Boards do.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KurtD2 on 02/12/2024 12:46 PM

That document has a checklist of various items and indicates the entity responsible, either HOA or Owner. For the item "Exterior wood, stucco" they indicated "Owner" is responsible. The cover letter attached to this checklist states that the HOA management company at that time, had their lawyer review and confirmed that it is was prepared according to California law.

From the part of Article 10, page 36, Section B, I can see the HOA maybe arguing that termites operate below surface, so getting rid of them is not the HOA's responsibility. Article 10's use of the word "surface" sort of leaps out at me. Factor in that a HOA board will do what it can to offload expenses to the HOA membership as a whole. If there is a reasonable way to differ on wording, such that the HOA is favored, the board will exercise this option (interpreting the covenant's wording in a way that favors the HOA). The board likely has a duty to do so.

Civil Code 4780 became effective on January 1, 2013. But nothing in Civ Code 4780 seems to change the authority of Article 10, page 36, Section B.

I believe one can attach photos by making sure the photo is smaller than 200 kilobytes. I know pdf files and MS Word docs attach as long as they are under the latter size limit. I do not think photos would help make your case here, though.

I think you have to weigh the expense of an attorney against the expense of paying for the termite extermination and repairs yourself. In my opinion: Often the enemy is not the HOA or the covenant. Instead the enemy is the legal process itself. The cost, time and energy that goes into fighting something like this, with zero guarantee of even winning, may argue strongly for jut paying for the extermination and repairs yourself. Just finding an attorney willing to take a case like this may be quite hard. Finally always remember that your "file" with an attorney will be merely one of many.

KerryL1 (California)
Posts: 14,550

Posted:

I think, Kurt, the Elle' s and my most recent posts crossed. Please REMEMBER:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY: "Civil Code § 4780. Wood-Destroying Pests. (a) In a community... condominium project....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." Because it's state statute, it overrides anything your own governing documents might say.

From what I can see, there is NO need to go into the weeds.

Elle's wonderment about the word "surface" is surprising as "surface," in this usage, refers to the exterior surface of the building, which is common area and the HOA's responsibility. It does not refer the surface as in the top layer of the ground. It does not matter where the termites came from, or else Civ. 4780 would specify.

And to repeat, there's no need for pics at all. WhatEVER the damage is in the common area, the HOA IS obligated to repair.

I, as noted above, agree with her opinion on legal action. As I wrote, which crossed with Elle's, legal action or obediently paying are NOT your only two options.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KerryL1 on 02/12/2024 3:57 PM
"surface," in this usage, refers to the exterior surface of the building, which is common area and the HOA's responsibility.

I worked from the definition of "common area" from Kurt's covenants above. I worked from the section on "Maintenance & Repairs" from Kurt's covenants above. I have no idea what definitions you are using. If you want to have a rational exchange, then please quote the definitions you are using.

It's not at all clear that the building walls, in their entirety, are common area.

It does seem clear that the HOA is responsible for the exterior surface.

Termites do not just damage exterior surfaces.

If Kurt wants to go a few rounds with the HOA in IDR over this, fine. Maybe he can get the HOA to pay for re-painting the walls and a bit more. But someone has to paint for sub-surface damage, and from the looks of it, I cannot say the HOA is responsible for this.

The definition of "unit" from the covenants might be helpful here. Or perhaps the covenants have verbiage on the boundaries of each unit.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By ElleN on 02/12/2024 1:31 PM

Posted By KurtD2 on 02/12/2024 12:46 PM

That document has a checklist of various items and indicates the entity responsible, either HOA or Owner. For the item "Exterior wood, stucco" they indicated "Owner" is responsible. The cover letter attached to this checklist states that the HOA management company at that time, had their lawyer review and confirmed that it is was prepared according to California law.

From the part of Article 10, page 36, Section B, I can see the HOA maybe arguing that termites operate below surface, so getting rid of them is not the HOA's responsibility. Article 10's use of the word "surface" sort of leaps out at me. Factor in that a HOA board will do what it can to offload expenses to the HOA membership as a whole. If there is a reasonable way to differ on wording, such that the HOA is favored, the board will exercise this option (interpreting the covenant's wording in a way that favors the HOA). The board likely has a duty to do so.

Civil Code 4780 became effective on January 1, 2013. But nothing in Civ Code 4780 seems to change the authority of Article 10, page 36, Section B.

I believe one can attach photos by making sure the photo is smaller than 200 kilobytes. I know pdf files and MS Word docs attach as long as they are under the latter size limit. I do not think photos would help make your case here, though.

I think you have to weigh the expense of an attorney against the expense of paying for the termite extermination and repairs yourself. In my opinion: Often the enemy is not the HOA or the covenant. Instead the enemy is the legal process itself. The cost, time and energy that goes into fighting something like this, with zero guarantee of even winning, may argue strongly for jut paying for the extermination and repairs yourself. Just finding an attorney willing to take a case like this may be quite hard. Finally always remember that your "file" with an attorney will be merely one of many.

I have no intention to engage the HOA in a legal action at this time. But I do want to call their bluff if in fact the CA civil code does truly supersedes any rule, regulation or document the Board presents. However if after I incur the cost of termite wood damage repair I find the HOA sis clearly liable, then small claims court is an option.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/12/2024 1:23 PM
WHAT is the name of this so-called "document," Kurt?* If the letter for your current PM does NOT say it was sent by the or "on behalf" of the Board, then it did NOT come from the Board. The attached "document" sounds like an Appendix or Exhibit to your CC&Rs. If so it MUST be recorded with the County. If so, you should see a county recorder's stamp on it. IF it is a valid document, the Owner would have been required to vote on it se Ince it seems to amend or change your CC&Rs. ONLY owners, as explained above may change or amend the CC&Rs.

Does it make ANY references to your REAL "governing documents," e.g., your CC&Rs? Does it make ANY references in it to the CA Civil Code about termites that we've supplied for you.

No need for photos. State Civil Code supersedes everything else and it, and your own CC&Rs, say the HOA is obligated to make repairs to the common areas. (I'll bet all condo CC&Rs say the HOA is responsible for exterior repairs unless the owner busted something themselves.)

Did you not read the "Hirearchy of Documents" at Davis-stirling.com?

Others may advise you to seek a lawyer at this time, but I do not. There are other steps to take. You have not, so far as I can tell, had any direct communication with the Board. We can't know if you PM is being honest with you. They are ONLY directed by the Board. You haven't asked the Board at an open board meeting their reasoning for not following Civil Code on this topic.
Would you mind sharing with us the letter that you did send to the Board? Redact you HOA name, etc. It could be there's different wording that might help you.

Another step is IDR. This might be described in your CC&Rs. See definitions per the beginning. It IS described in a required (by CA Civil Code) letter you receive annually from your Board that contains a whole lot of information. It's called something like the Annual Budget and Reserves Report and Policy Statements." It might be quite lengthy--even 20 pages. It was due to owners 30 days before your fiscal year began. Davis-stirling.com also explains IDR

IDR is Internal Dispute Resolution and if you request it, the Board must comply. You'd meet with a director to two to discuss this disagreement.

Now if you want to skip some steps and find a lawyer or take other legal means it will cost you a lot of time and possibly a lot of money.

* It s doesn't mater if it was a different PM. PMs do NOT make policy decisions; Boards do.

The letter the current PM sent me which was provided to them by the Board in response to my recent letter to the Board, is a 2008 letter from the Board on the then PM company letterhead entitled: "Homeowners Responsibility Matrix" and the cover page simply states that the HOA lawyer reviewed the checklist and confirmed it is in accordance to CA law. I did review the Davis-Sterling website and various relevant content. At this point, I would be willing to pay a few hundred dollars to just get their legal opinion and confirmation or negation that CA civil code regarding wood damage repair supersedes all. But I am not sure there is an option for that.

KerryL1 (California)
Posts: 14,550

Posted:

Kurt, elle sometimes jumps in and messes with discussions that have been serious & productive and adds odd "what ifs." Your CC&Rs state the HOA is responsible for all the common areas. They are obligated to care for the exteriors of your building just as they are mine and any other condo buildings I've ever heard of*

Civ. 4780 is clear that the HOA is responsbile for the common area termite damage correction & repair. Why elle is talking about "painting" is very strange, Perhaps she doesn't recall that his post is NOT about Kurt's interior walls, i.e., his separate interest.

* I asked way above if any of this is in your patio area (if you have one), Kurt, which may be a different story. It would be discussed in your CC&Rs too.

KurtD2 (California)
Posts: 26

Posted:

Quote:

Posted By KerryL1 on 02/12/2024 3:57 PM
I think, Kurt, the Elle' s and my most recent posts crossed. Please REMEMBER:

https://www.davis-stirling.com/HOME/Statutes/Civil-Code-4780#axzz2CR2ljirY: "Civil Code § 4780. Wood-Destroying Pests. (a) In a community... condominium project....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." Because it's state statute, it overrides anything your own governing documents might say.

From what I can see, there is NO need to go into the weeds.

Elle's wonderment about the word "surface" is surprising as "surface," in this usage, refers to the exterior surface of the building, which is common area and the HOA's responsibility. It does not refer the surface as in the top layer of the ground. It does not matter where the termites came from, or else Civ. 4780 would specify.

And to repeat, there's no need for pics at all. WhatEVER the damage is in the common area, the HOA IS obligated to repair.

I, as noted above, agree with her opinion on legal action. As I wrote, which crossed with Elle's, legal action or obediently paying are NOT your only two options.

I am a little confused.

On one-hand you say that because it is a CA state statute, that it supersedes all other governing documents. But the code you cited itself states, "unless otherwise provided for in the Declaration". The Declaration is a governing document correct?

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KerryL1 on 02/12/2024 7:16 PM
Your CC&Rs state the HOA is responsible for all the common areas.

True.

Quote:

Posted By KerryL1 on 02/12/2024 7:16 PM
They are obligated to care for the exteriors of your building

Not accurate. Quoting the covenant, the HOA is obliged to provide "maintenance" for "exterior paint... exterior building surfaces... ”

Quote:

Posted By KerryL1 on 02/12/2024 7:16 PM
Civ. 4780 is clear that the HOA is responsbile for the common area termite damage correction & repair.

No Kerry. Civ Code 4780 qualifies when the HOA is responsible, using the words, "unless otherwise provided in the declaration... "

Quote:

Posted By KerryL1 on 02/12/2024 7:16 PM
Why elle is talking about "painting" is very strange

Sorry but this is once again your inability to grok plain english, like that given in the covenants in question here, and like that given in the first post.

That you believe exterior walls never require painting is weird.

My opinion remains that the board has a good legal argument for the HOA not to do sub-surface repairs. I believe KurtD2 and the board can go round and round on this and get nowhere.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KurtD2 on 02/12/2024 7:20 PM
On one-hand you say that because it is a CA state statute, that it supersedes all other governing documents. But the code you cited itself states, "unless otherwise provided for in the Declaration". The Declaration is a governing document correct?

Exactly. Good job.

ElleN (Idaho)
Posts: 4,420

Posted:

Quote:

Posted By KurtD2 on 02/12/2024 7:06 PM
if after I incur the cost of termite wood damage repair I find the HOA sis clearly liable, then small claims court is an option.

I think this is a good plan.