Reader Questions - Flooding, Termites

Dear Kelly,

Recently our HOA decided to xeriscape the area at the front and rear of our unit (along with all the others). The property adjacent to our unit is approximately 6-8 feet higher than we are. There were no alterations to the new landscaping to accommodate any water runoff. Recent heavy rains washed most of the landscaped areas into our unit, over $4,000.00 repair cost. The HOA says they do not have insurance to cover acts of god. Does that let them off the hook for their negligence?

D.W., Palm Desert

Dear D.W.,

Without reviewing your association governing documents, I cannot confirm the allocation of responsibility, but I may be able to help. Some governing documents (typically CC&Rs or rules) allocate responsibility for water damage originating from outside a residence. The issue may not be negligence at all. If the documents say nothing, often a neighboring unit (the bathtub overflowing) or the association (common area water entering residence) might be responsible without any wrongful or careless act. The responsibility may come from the principal of nuisance or trespass, in which the law assumes that it is fairer for the responsibility for the damage to be placed upon the owner of the property from which the cause of the damage originated.

This is a complicated subject, and your association should consult with its legal counsel to make sure it is taking the correct position. As to the insurance company, adjustors also often can misunderstand that negligence might not be necessary for their insurance company to be responsible to pay.

Thanks for your question,
Kelly

Termites

Dear Kelly,

I live in a small condo association. I have termites and I’m connected to at least 3 other units. My CC&Rs don’t address termites or whose responsibility it is to treat them. I had an inspection and the recommendation is to fumigate by tenting.

According to a previous article you had written, you said that unless the governing documents stated otherwise, the condo association is responsible for termite treatment. You referenced Civil Code 1364(b). I looked it up and my understanding is that the HOA is responsible for only common area repair due to termite damage. Furthermore, in Civil Code 1364(2) it states that “…each owner of a separate interest is responsible for the repair and maintenance of that separate interest as may be occasioned by the presence of wood-destroying pests or organisms.”

I have two questions. First, whose responsibility is it to treat termites in each separately owned unit? Second, since I am connected to my neighbors, how do I handle the tenting recommendation?

Thank you,

E.R., Monrovia

Dear E.R.,

With the advent of the new year, the statute has moved to a new home. The section governing termite treatment is now found at Civil 4780. However, the rule is still the same: If the governing documents do not say otherwise, the condo association, cooperative or community apartment project board must address common area termite damage. However, the statute does not make the association responsible for damage inside the residence (such as damage or infestations in furniture). You probably have already informed the board of the discovery of termites, and it is the board’s responsibility to handle the issue appropriately. Tenting the building is a board decision.

Thanks,
Kelly

Written by Kelly G. Richardson

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 [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.