This is part of a mini-series on termites in HOAs. Part One: Who handles those termites?
Q: Our board is resolved to resume fumigation of the buildings in our community and has voted to obtain quotes for the next phase of fumigation but has not voted yet to schedule the work. The president does not consider that to move out of one’s home and into a hotel or another person’s home is a COVID risk. Does the board have the right to push through with the fumigation work and force people out of their homes during COVID times? What do you recommend happens? — C.P., Huntington Beach
A: If the association has confirmed a termite infestation in the framing, that can affect all of the HOA owners. Effective treatment can protect the building’s structural integrity, thereby protecting residents’ safety and protecting owners from long-term major repair costs.
Civil Code Section 4785 allows the HOA to temporarily remove an occupant from a residence slated for termite treatment if the HOA meets certain specified conditions. The HOA must mail or personally deliver written notice to the owner with specific information at least 15 but not over 30 days before the date the residence must be vacated.
If the HOA finds it necessary to invoke this statute, it should consult its legal counsel before beginning the removal of a resident, and the lawyer will most likely suggest a court order is obtained on an emergency basis. HOAs should not try to force residents out of their homes without the appropriate legal processes being invoked, and residents should cooperate with this important preventative work.
Q: My building has confirmed termite activity in more than half of the units. The board ruled there was not enough evidence of a problem despite the unit inspections. I’ve presented multiple independent inspection reports, almost all of which say that fumigation is recommended. I can’t get traction with the board to act as I watch my hardwood floors being eaten by termites. Spot treatment alone has not been effective for termite activity that most likely has migrated from a “common area”. Where does one even start with this mess? — S.P., Point Loma
A: The board has broad discretion in dealing with this, so long as it acts with the appropriate expert advice. This comes from a case involving an HOA not far from you, the La Jolla Shores Clubdominiums. In that HOA, the homeowner believed the buildings should be fumigated by tenting, but the board had obtained advice from a pest control firm that spot treatment would be adequate.
In 1994, the homeowner (Gertrude Lambden) sued the HOA, alleging the board had failed to fulfill its duties. The case wound up on appeal in 1999 before the State Supreme Court, which ruled that, so long as the board conducted a reasonable investigation, courts would give boards “judicial deference” and support the board’s discretion on ordinary maintenance decisions.
That landmark HOA law ruling can be found at 21 California Reports 249 (1999).
On the other hand, boards eschewing competent expert advice may find themselves outside the protection of the Lambden decision, outside the immunity of the Business Judgment Rule, and, worse yet, outside the protection of their Directors and Officers insurance coverage and Civil Code Section 5800 immunity.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com.
Source: Orange County Register