Dear Kelly: I live in a townhouse. My neighbor had termites and my other neighbor on the other side suspects them as do I.  We were told by the association that it is our responsibility to take care of them.  It just seems to me that termites come from the outside in and should be the responsibility of the association.  Could you shed some light on this for me.  M.N., San Clemente

Dear Mr. Richardson: Does the association have any responsibility to handle a termite problem originating from trestles (wood patio overhangs) that were originally installed by the builder and are part of the architectural design of the townhouses? Termites are entering the home due to infestation of dry rot and termites in these structures. R.M., Coto De Caza

Dear M.N. and R.M.:

Termite infestations in attached housing affect not only those living in affected buildings but potentially affect all assessment-paying members if the damage requires expensive repairs to common area framing. Allocation of responsibility is provided by Civil Code Section 4780(a) which states that in condominium, stock cooperative, or community apartment associations, the association is responsible for repair and maintenance of common area termite issues, unless the CC&Rs say otherwise. 

You each describe your homes as “townhouses,” but that describes the homes’ architectural configuration, not the type of property ownership you have. A townhouse could be a planned development, condominium, stock cooperative or community apartment property. If the CC&Rs are silent and your association is a condominium (you own a “unit”), stock cooperative (you own a share of stock) or community apartment (you own an undivided equal fractional interest of the entire project) then under this statute common area termite treatment and repair is HOA responsibility.

Many associations are built in the townhouse style which are planned developments and owners’ deeds recite that they own a “lot.” In such associations under Civil Code Section 4780(b) the owners are responsible to handle their own termite prevention and repair issues, (again, unless the CC&Rs state otherwise). Attached planned developments such as townhouse buildings present a problem for the individual owners, because they cannot tent their entire building without permission of each of the owners in that building. This can make it difficult for anything other than spot treatment to occur. Per Civil Code Section 4780(b), a majority of all the members can vote to allocate this responsibility to the association, or the association members may well vote to amend their CC&Rs to accomplish the same thing.

Best regards, Kelly

Dear Kelly: My HOA is not very diligent about termite prevention. I had subterranean termites come in through a crack in the slab foundation and ruin my wood floor. The HOA declines any responsibility for my floor because it is on the other side of the slab. They drilled holes in the slab and filled the cracks with epoxy. Do I have any recourse for the amount spent to repair my floor? Thanks, T.M., Rancho Bernardo

Dear T.M.: Your association may not recognize the fact that the termites entered through a crack in the slab, which crack the HOA has apparently agreed is HOA responsibility. Remind them that the problem originated from a common area issue and hopefully you all can work things out.

Best, Kelly

 

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com. All rights reserved®.

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