HOAs and Pests – Who is Responsible for Eradication? Broken Screens? – Article by Beth A. Grimm

Article by Beth Grimm, P.L.C. HOA & Condo Attorney

Here’s a good quandary sent by a reader:

“Recently, wasps entered my unit via a broken screen on our kitchen exhaust vent outside the unit. The
exhaust vent is on the second floor. The HOA manager hired an exterminator to repair the screen and kill the nest but stuck me with the bill. She says the vent screen is exclusive to the unit and not part of the common area. But the screen broke because of neglect … and failure to maintain the screens. The CC&Rs are inconclusive and the manager claims that the HOA is responsible for only “wood-destroying” pests like termites. So, is this exhaust vent part of common area or every unit’s responsibility for maintaining the vent screens? It doesn’t make sense to me that each owner needs to climb up the side walls to fix vent screens as they are uniform to the complex structure.”

I am not surprised that the CC&Rs are “inconclusive”. I have never seen any drafted by other attorneys that mention wasps (I sometimes do depending on discussions with the board). However, the real question here is who is responsible for the screens keeping the pests out.

There is probably is something in the documents that would give some indication of ownership and
responsibility that would help answer this question, even if the owner cannot see it. An attorney would be looking very closely if giving a legal opinion.  And there might even be a distinction in any reference to pests as opposed to wood destroying pests. But even if not, someone is definitely responsible for maintenance of the screens.  I don’t know if this is a condo where the owner owns “airspace” and everyone owns the buildings as tenants in common, or a planned development where an owner owns the “lot”.   What I would be looking for first is type of ownership and then any language in the documents that talks about exterior maintenance of the buildings, and whether that maintenance is specific or loose enough to include vents and such. And if
the documents were no help I would turn to the law. Here is what the law says about common interest developments which include condos (where the owner owns airspace) and planned developments (where the owner owns a “lot”):

Civil Code Section 1364:  MAINTENANCE, AND REPLACEMENT OBLIGATIONS; TERMITE AND PEST CONTROL RESPONSIBILITIES; NOTICE OF REPAIR REQUIREMENTS; TELEPHONE WIRING AND ACCESS.

(a)  Unless the Declaration [which most commonly is the CC&Rs] provide otherwise, the association is responsible for repairs, necessary replacements and maintenance of the common areas in a CID, other than “exclusive use common areas”, and the owner is responsible for maintaining his or her separate interest and “exclusive use common area”.

 

So, under this law, the owner would be responsible to maintain his or her property and any exclusive use common area. It sounds like the vents are exclusive to the one separate interest (lot or unit) and thus it could be the owner is responsible. The argument that the owner should not have to “climb up the side of the walls” doesn’t hold much water. Like fixing windows, topping a chimney with a spark arrestor, or repairing a vent on the roof, whether the association or the owner has the responsibility, neither needs to (or should) climb up to inspect or fix it – they should hire someone who knows what they are doing to make the repair or
inspect the area.

 

Of course this is not a legal opinion – that could not be made without reviewing documents of the association.

– Click here to view the original article –

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