Real Estate & Property Law

Termite Repairs in California - Who Repairs the Property Damaged to Get To Them?

Termites issues come up all the time. A reader recently sent me a long involved story of the situation in his condo association. I cannot answer long and involved emails, or, for that matter, any emails that ask for information specific to a particular person or association's situation, because that would be giving legal advice without the important step of interviewing a client. And, unfortunately for those who write, I do not have time to provide free legal advice. That said, the person was kind enough to digest the situation to a question that might help others too. The scenario described in generic terms is:

"In our HOA, termites were located in the area between the ceiling and the roof of our condo. The Association admitted that it is responsible for the treatment of the termites and said that the termite company would open up the dry wall ceiling. The HOA wants to hold us responsible for the repair of the ceiling."

How can we be responsible? The Association damaged the ceiling in going after the termites. The repairs could have been accomplished through the roof (much more expensive for them) to get to the infected area."

This owner said there was nothing in the governing documents related to this issue which I commonly hear. There might be something pertinent to the question of who repairs what. Owners are probably responsible for repairing their units and the HOA is probably responsible for repairing common area, which is the usual threshold scheme of responsibility. The next inquiry (to see whether that scheme shifts) generally is whether there was negligent behavior on the part of either party that caused the damage. The mere presence of termites does not necessarily support any claim of negligence.

In this case, it does not sound like there was any negligence. It is true that the HOA damaged the ceiling in getting to the termites, but that fact alone does not necessarily determine liability. It is much the same as the case where the Board has to go through a floor to get to a slab leak, or has to open up a ceiling of a lower unit to let water escape from a leak that sprung in the common area or a tub that overflowed above and damaged the common area and lower unit. There are several factors that would have to be considered to determine whether the HOA has to repair the portions of the unit that are damaged in doing so.

Were I examining such a question for a client, I would ask a lot of questions about the current situation, past practice and similar situations, whether there were termite preventive measures in place, what recommendations had been made and followed by the HOA with regard to the termites, options explored by the Board for treatment and repair, and I would closely review the governing documents to see what guidance existed there. I would ask if there were any maintenance policies in place, and would consider case authority that exists.

In this case, the owner says the HOA could have approached this problem by going through the roof at a much greater expense. If a court was examining the question of whether the Board's decision and approach to the work was appropriate, these facts would be pertinent (1) whether the Board consulted an expert and relied on that advice to determine the best approach to the problem and (2) why the Board chose one approach over another.

It's more complicated an issue than simply opining that everytime the Board has to go through a unit to fix a problem, it has to repair the unit. There are a lot of considerations.

So I cannot say whether the Board was right or wrong in its determination that the owner should repair his own ceiling. Often, though, when a Board does have to go through a unit to fix a leak or make a repair, often the Board arranges at least for the dry wall to be reinstalled, and sometimes for painting to be done in the area entered, matching as closely as possible the paint on the ceiling or walls, in the area of the repair (although owners would always like to have more). When fixing a slab leak, the Board will often arrange to have carpeting re-stretched - assuming the carpeting is not so old it falls apart. Where the differences come in is when the owner wants a whole room painted, or expensive hardwood flooring replaced, or cupboards that are too old to put back up replaced. In the situation at hand, it appears we are just talking about a ceiling repair, which, if rises to a legal dispute, will cost both parties more than it costs to do the repair.

Unforetunate, to be sure.

Full post as published by California Condo & HOA Law on November 23, 2008 (boomark / email).