Who handles these termites? – Day by day Information

Q: I live in a town house. My neighbor had termites and my other neighbor on the other side suspects them as much as I do. The association told us that it is our responsibility to take care of them. It just seems to me that termites come in from the outside and should be the responsibility of the association. Could you shed some light on me? – MN, San Clemente

Q: Does the association have a responsibility to solve a termite problem that arises from trestles (wooden terrace overhangs) originally installed by the client and part of the architectural design of the townhouses? Termites invade the home due to the infestation of dry rot and termites in these structures. – RM, Coto De Caza

A: Termite infestation in attached homes affects not just those living in affected buildings, but potentially any members who pay an assessment if the damage requires expensive repairs to common areas. The division of responsibility is foreseen in Section 4780 (a) of the Civil Code, which states that in condominium, joint-stock, or community housing associations, the association is responsible for repairing and maintaining termite problems in the community area, unless the CC&Rs do anything specify otherwise.

You each describe your homes as “townhouses,” but that describes the architectural configuration of the homes, not the type of property you own. A townhouse can be a planned development, condominium, stock corporation, or communal apartment. If the CC & Rs are silent and your association is a condominium (you own a “unit”), a joint-stock cooperative (you own an equity stake), or a communal apartment (you own an undivided, equal stake of the entire project), then under this treatment and repairing termites in the common area is the responsibility of the HOA.

Many clubs are built in the townhouse style, which is a planned development, and the owners’ deeds state that they own a “plot of land”. In such Civil Code Section 4780 (b) associations, the owners are responsible for resolving their own termite prevention and repair problems (unless the CC & Rs specify otherwise).

Attached planned developments such as townhouse buildings pose a problem for individual owners as they cannot camp their entire building in that building without the permission of each owner. This can make it difficult to do anything other than point treatment.

Pursuant to Section 4780 (b) of the Civil Code, a majority of all members can vote to assign this responsibility to the association, or the association members may well vote to change their CC & Rs to achieve the same.

Q: My HOA is not very diligent about termite prevention. I let subterranean termites enter through a crack in the foundation plate and ruin my wooden floor. The HOA declines any responsibility for my floor as it is on the other side of the plate. They drilled holes in the board and filled the cracks with epoxy. Do I have recourse to the amount spent repairing my floor? – TM, Rancho Bernardo

A: Your association may not recognize the fact that the termites entered through a crack in the plate. The same rift that the association apparently agreed to is the responsibility of the HOA. Remind them that the problem stemmed from a problem with the common area and hopefully you can all help.

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 the Community Association. Send questions to Kelly@rodllp.com.