Who Handles My Termite Problem?

By Kelly G. Richardson, Esq. CCAL, HOA Homefront Column

Dear Kelly: I have a two-story townhome that has termites. I notified the HOA and they were going to send a termite company to treat the infestation. However, before the termite company could do an inspection, the new management company refused to have the termites treated. I was told that the HOA was only responsible for the "common areas," and I was responsible for everything inside my unit. The problem is these townhomes are attached to other townhomes. You can't treat one without the other so to speak. Any advice would be appreciated. Thank you. J.M., Tustin

Dear Mr. Richardson: In most or all HOAs CC&Rs cover termites on the exterior of the building. But the management company says that they do not cover them inside the unit, they say it is the homeowner’s responsibility to take care of them.  My problem is that we get termites in our units because they came in from the exterior of the unit. Can you give us advice on what to do? B.C., Trabuco Canyon

Dear J.M. and B.C.: To determine responsibility for termite problems, start with your HOA CC&Rs, hopefully it describes whether the HOA or you are responsible for termite treatment and damage repair. If the CC&Rs are silent on the issue, Civil Code Section 4780 allocates treatment and repair responsibility differently, depending upon the type of HOA. In community apartment (also known as “own-your-owns”) HOAs, stock cooperatives, and condominiums, the HOA is responsible. In planned developments, the homeowner is responsible.

In townhouse-style planned developments, where homes are attached side-to-side but are not stacked, leaving termite treatment to the individual homeowner is unwise, since the entire building needs treatment, not just one townhouse. Many developers of attached planned development homes miss this issue when setting up the original CC&Rs leaving the HOA membership with the unreasonable situation in which no single homeowner has the right to tent the entire building, and yet treating just their individual home is generally ineffective to prevent termites. The situation can be corrected with a membership vote to amend CC&Rs to shift that responsibility to the HOA.

As to interiors and furniture, Civil Code Section 4780 only addresses termite damage to common area in condominiums, stock cooperatives and community apartments and the HOA is not responsible for damage to the unit interiors or contents. So, the HOA in that scenario would be responsible for repairing common area damage but the individual homeowner would pay for termite damage to wood cabinetry, furniture, or other interior items.

Check your CC&Rs to confirm the type of HOA in which you own – it will usually state in the first pages which type of “common interest development” is your HOA. If that doesn’t help, check your deed – if your deed says you own a “unit” and a shared common area ownership, your home is probably a condominium. If you don’t have a deed but instead receive a share of stock in your HOA, it’s a stock cooperative. If you receive a tenant in common deed stating that you have an undivided fractional interest in the entire property (but do not own a specific residence within that property) your HOA is probably a community apartment. If your deed calls your interest a “lot,” then most likely you own in a planned development. Hoping this helps, Kelly.