This is part of a miniseries about termites in HOAs. Part one: who handles these termites?
Q: Our board of directors is determined to resume fumigation of the buildings in our community and has decided to obtain offers for the next fumigation phase, but has not yet voted to plan the work. The president does not believe moving from home to a hotel or someone else’s house poses a risk of COVID. Does the board have the right to enforce the fumigation work and force people out of their homes during COVID times? What do you recommend happening? – CP, Huntington Beach
A: If the association has confirmed a termite infestation in the frame, this can affect all HOA owners. Effective treatment can protect the structural integrity of the building, protecting the safety of residents and owners from major long-term repair costs.
Section 4785 of the Civil Code allows the HOA to temporarily remove an inmate from a termite treatment residence if the HOA meets certain set conditions. The HOA must provide written notice with specific information by mail or in person to the owner at least 15 but not more than 30 days prior to the date the residence must be vacated.
If the HOA deems it necessary to invoke this law, they should consult their legal counsel before commencing removal of a resident and the attorney will most likely suggest that a court order be obtained in an emergency. HOAs should not attempt to force residents out of their homes without proper legal process, and residents should work together on this important prevention work.
Q: My building has confirmed termite activity in more than half of the units. The board ruled that despite the inspections of the units, there was not enough evidence of a problem. I have submitted several independent inspection reports, almost all of which say fumigation is recommended. I can’t get traction with the board when I see my hardwood floors being eaten by termites. Spot treatment alone was not effective for termite activity that is most likely to have migrated from a “common area”. Where do you even start with this mess? – SP, Point Loma
A: The board has a wide discretion as long as it acts on the appropriate expert advice. This comes from a case where an HOA is involved not far from you, the La Jolla Shores Clubdominiums. In that HOA, the homeowner believed that the buildings should be fumigated by tents, but the agency had received advice from a pest control company that spot treatment would be appropriate.
In 1994 the house owner (Gertrude Lambden) sued the HOA on the grounds that the board had not fulfilled its obligations. The case was challenged in 1999 in the Supreme Court, which ruled that, as long as the Chamber conducted an appropriate investigation, the courts would grant the Boards “judicial recognition” and assist the Chamber’s discretion in making ordinary maintenance decisions.
This landmark HOA law decision can be found in 21 California Reports 249 (1999).
On the other hand, bodies that forego competent expert advice may find themselves outside the protection of the Lambden Decision, outside the immunity of the Business Judgment Rule and, even worse, outside the protection of their insurance coverage for directors and officers and the Civil Code, Section 5800, are immunity.
Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and a partner of Richardson Ober DeNichilo LLP, a California law firm known for advising Community Association. Send questions to Kelly@rodllp.com.
