Modern sets of CC&Rs for condominium developments often contain provisions that restrict the types of flooring materials may be installed within a unit and/or at specific locations within a unit. Those restrictions purport to protect neighboring owners from being subjected to nuisance noise transmissions that unreasonably interfere with the quiet use and enjoyment of their units. In situations where an owner installs hardsurface (i.e., hardwood) flooring without approval and in violation of the CC&Rs, the association may have the authority to sue the owner in order to compel the removal of the flooring, or to at least require that the flooring be modified in order to abate nuisance noise transmissions:
“… the directive to find a compromise in modifying the flooring, as well as the interim remedy of using throw rugs, reflected a balanced consideration of the circumstances of everyone involved, including the residents below who were adversely affected by defendant’s violation of the noise and nuisance restrictions.” (Ryland Mews HOA v. Munoz (2015) 234 Cal.App.4th 705, 713.)
Related Links
Hardwood Flooring & ‘Nuisance Noise’ – HOA Lawyer Blog, published 03/09/15
Standing to Litigate
Association Standing
Civil Code Section 5980 grants to an association “standing to institute, defend, settle, or intervene in litigation, arbitration, mediation or administrative proceedings in its own name as the real party in interest and without joining with it the members,” in matters that pertain to any of the following:
- Enforcement of the governing documents; (Civ. Code § 5980(a).)
- Damage to the common area; (Civ. Code § 5980(b).)
- Damage to a separate interest that the association is obligated to maintain or repair; (Civ. Code § 5980(c).)
- Damage to a separate interest that “arises out of, or is integrally related to,” damage to the common area or a separate interest that the association is obligated to maintain or repair; and (Civ. Code § 5980(d.)
- Construction defects. (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162.)
Under certain circumstances, an association may also have standing to sue third parties solely as a representative of the association’s members. (Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 932-933.)
Owner Standing to Enforce CC&Rs
An association’s members also have standing to enforce the restrictions contained in the CC&Rs, unless otherwise stated in the CC&Rs. (Civ. Code § 5975(a).) A member may also “sue the association for damages and an injunction to compel the association to enforce the provisions of the [CC&Rs].” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.)
- No Standing for Prior Owners – A person who no longer owns a unit within the association (a person who is no longer a member of the association) does not have standing to enforce the CC&Rs. (Farber v. Bay View Terrace HOA (2006) 141 Cal.App.4th 1007, 1012.)
- No Standing for Renters – Renters do not have standing to sue an association for breach of its CC&Rs or violations of the Davis-Stirling Act, notwithstanding whether an owner has executed a power of attorney to his renter to handle matters relating to the owner’s property. (Martin v. Bridgeport Community Assn. (2009) 173 Cal.App.4th 1024, 1036 and 1038; See also “Renter Rights.”)
Failure to Enforce
An association has the duty to enforce the restrictions set forth in its CC&Rs. When it fails to do so, “a homeowner can sue the association for damages and an injunction to compel the association to enforce the provisions of the [CC&Rs].” (Posey v. Leavitt (1991) 229 Cal.App.3d 1236, 1246.) However, an association’s enforcement duty does not necessarily require its board of directors to litigate every violation of the association’s governing documents; the board is granted some discretion in determining whether or not to litigate any particular violation. (See “Duty to Enforce.”)
Relinquishment of Enforcement Rights
If an association’s board fails or refuses to enforce the restrictions, the association may ultimately lose its right and ability to enforce the restrictions based upon the following:
- Statute of Limitations – The statute of limitations for a violation of a restriction is five (5) years from the time the association “discovered or, through the exercise of reasonable diligence, should have discovered the violation.” (Code. Civ. Pro § 336(b).) The term “restriction” in this respect does not mean only those restrictions which are recorded in the CC&Rs; it also includes unrecorded restrictions such as architectural standards. (Pacific Hills HOA v. Prun (2008) 81 Cal.App.4th 1557, 1563-1564.)
- Laches – Laches is an equitable defense that is used against persons who are unjustifiably slow to exercise a right or claim. The defense of laches could be used to defeat an association’s enforcement action if an association unreasonably delays in exercising its enforcement rights and that delay results in prejudice to the violating homeowner. (Pacific Hills, at 431.)
- Waiver – “The right to enforce a restrictive covenant may be deemed generally waived when there are ‘a sufficient number of waivers so that the purpose of the general plan is undermined,’ in other words, when ‘substantially all of the landowners have acquiesced in a violation so as to indicate an abandonment.’” (Alfaro v. Community Housing Improvement System & Planning Assn. (2009) 171 Cal.App.4th 1356, 1380.)
Document & Notice Delivery Methods
Delivery from an Association to a Member
The Davis-Stirling Act mandates that certain association documents and notices be delivered to its members via specified delivery methods. Those methods include (1) “individual delivery” or “individual notice,” and (2) “general delivery” or “general notice.”
“Individual Delivery” or “Individual Notice” to a Member
When a document or notice must be delivered to a member by “individual delivery” or “individual notice”, the association must send the document in accordance with the preferred delivery method specified by the member pursuant to Civil Code section 4041. (Civ. Code § 4040(a)(1).)
Section 4041 requires each member to, on an annual basis, specify their preferred delivery method for receiving notices from the association (either at a valid mailing address, or at a valid email address, or both), and an alternative/secondary delivery method for receiving notices. Where a member fails to provide the association with that information, the association is required to use the last mailing address requested in writing by the member for the delivery of notices; if the member has never made such a request, then the association must deliver the notice to the member’s property address. (Civ. Code § 4041(c); See also “Annual Notice & Solicitation of Member Contact Information“.)
Notices Mailed to a Valid Mailing Address. When a notice is to be mailed to a valid mailing address of the member, it must be mailed via first class mail, registered or certified mail, express mail, or overnight delivery by an express service carrier. (Civ. Code § 4040(a)(2).) Mail delivery of a notice is deemed complete at the time the notice is deposited into the US mail. (Civ. Code § 4050(b).)
Notices Emailed to a Valid Email Address. When a notice is to be mailed to a valid email address specified by the member, it must not result in a bounce or other error notification indicating failure of the message. (Civ. Code § 4040(e); See also “Annual Notice & Solicitation of Member Contact Information“. ) If a notice is sent to a valid email address, delivery is deemed complete at the time of transmission. (Civ. Code § 4050(c).)
Below are some examples of documents and notices that must to be delivered to members by individual delivery:
- The annual budget report or a summary of the annual budget report. (Civ. Code § 5320(a); See also “Annual Budget Report.”)
- The annual policy statement. (Civ. Code §§ 5310(b), 5320(a); See also “Annual Policy Statement.”)
- Notices of disciplinary hearings. (Civ. Code § 5855(a); See also “Notice & Hearing Requirements.”)
- Notice of assessment increases. (Civ. Code § 5615; See also “Limitations on Assessment Increases.”)
Additional Delivery of Certain Notices to a Secondary Address. Civil Code section 5260 allows for a member to have additional copies of certain notices delivered to a secondary address of the member upon receipt of a member’s written request for the same. The notices which must be delivered to the secondary address include those pertaining to the annual budget report, annual policy statement, financial disclosures and assessment delinquencies. (See Civ. Code § 4040(b).)
“General Delivery” or “General Notice” to a Member
When a document or notice must be delivered by general delivery or general notice, an association must send the document or notice by one or more of the following methods:
- Any method provided for delivery by individual delivery or individual notice. (Civ. Code § 4045(a)(1).)
- Inclusion in a billing statement, newsletter, or other document that is delivered by one of the methods provided in Civil Code section 4045.(Civ. Code § 4045(a)(2).)
- Posting the printed document in a prominent location that is accessible to all members, if the location has been designated for the posting of general notices by the association in the annual policy statement. (Civ. Code § 4045(a)(3).)
- If the association broadcasts television programming for the purpose of distributing information on association business to its members, by inclusion in the programming. (Civ. Code § 4045(a)(4).)
- If the association maintains an internet website for the purpose of distributing information on association business to its members, by posting the notice on the association’s internet website in a prominent location that is accessible to all members if designated as a location for posting general notices in the annual policy statement. (Civ. Code § 4045(a)(5).)
Below are some examples of documents and notices that can be delivered to members by general delivery:
- Notice of a change to the association’s operating rules. (Civ. Code § 4360; See also “Adopting & Amending Operating Rules.”)
- Notice of board meetings. (Civ. Code § 4920(c); See also “Board Meeting Notice Requirements.”)
Right to Receive General Notices by Individual Delivery. A member may issue a written request to the association to have all general notices delivered to that member be given by individual delivery instead. (Civ. Code § 4045(b).) The option to receive general notices by individual delivery must be described in the association’s annual policy statement. (Civ. Code § 4045(b).)
Delivery from a Member to an Association
If a provision of the Davis-Stirling Act requires that a document be delivered to an association, the document must be delivered to the person designated in the association’s annual policy statement to receive documents on behalf of the association. (Civ. Code § 4035(a).) Any such document may be delivered to the association by any of the following methods:
- By email, facsimile, or other electronic means, if the association has assented to that method of delivery. (Civ. Code § 4035(b)(1).)
- By personal delivery, if the association has assented to that method of delivery. If the association accepts a document by personal delivery, the association must provide a written receipt acknowledging delivery of the document. (Civ. Code § 4035(b)(2).)
- By first-class mail, postage prepaid, registered or certified mail, express mail, or overnight delivery by an express service center. (Civ. Code § 4035(b)(3).)
The following documents/requests must be submitted to the association in writing pursuant to Civil Code Section 4035:
- A request to change the member’s information in the association’s membership list. (Civ. Code § 5260(a).)
- A request to add or remove second address for delivery of individual notices to the member. (Civ. Code § 5260(b).)
- A request for individual delivery of general notices to the member, or a request to cancel a prior request for the same. (Civ. Code §5260(c).)
- A request to opt out of the membership list, or a request to cancel a prior request for the same. (Civ. Code § 5260(d).)
- A request to receive a full copy a specified annual budget report or annual policy statement. (Civ. Code § 5260(e).)
- A request to receive all annual budget reports and annual policy statements in full (rather than a summary), or a request to cancel a prior request for the same. (Civ. Code § 5260(f).)
When a Document is Deemed Delivered
When a document is delivered by mail, delivery is deemed to be complete on deposit into the United States mail. (Civ. Code § 4050(b).) When a document is delivered by “electronic means” (i.e., E-mail), the delivery is complete at the time of the transmission. (Civ. Code § 4050(c).)
Related Links
SB 261 Signed! Changes to Individual and General Notice
Published on HOA Lawyer Blog (9/27/18)
Payment Plans
Absent contrary provisions in an association’s governing documents, an association is not legally required to propose or grant payment plans to owners who are delinquent in the payment of assessments to the association. However, an association is required to provide owners with the association’s standards for payment plans (if any exists), and the board is also required to consider a payment plan request that is submitted to the board by a delinquent owner. (Civ. Code §§ 5665(a), 5730(a).) These requirements are discussed below.
Notice of Payment Plan Standards
An association is required to provide the owners with the association’s standards for payment plans, if any exists. (Civ. Code §§ 5665(a), 5730(a).) The obligation of an association to inform owners of the association’s standards for payment plans must also be disclosed as part of the association’s “annual statement of collection procedures” that is a component of the association’s annual policy statement. (Civ. Code §§ 5730(a), 5310(a)(6).)
Owner’s Request to Meet with Board to Discuss Payment Plan
Notwithstanding whether an association has any standards for payment plans, an owner may submit a written request to meet with the board to discuss a payment plan. (Civ. Code § 5665(a).) The board is required to meet with the owner in executive session within forty-five (45) days of the postmark of the request, if the request is mailed within fifteen (15) days of the date of the postmark of the pre-lien letter, unless there is no regularly scheduled board meeting within that period, in which case the board may designate a committee of one or more directors to meet with the owner (i.e., an executive committee). (Civ. Code § 5665(b).)
*Exception – Time Share Interests
The owner of a time-share interest does not have the right to request that the association consider a payment plan. (Civ. Code §§ 5665(a), 5730(a).)
Components of Payment Plan
A payment plan may incorporate any assessments that accrue during the payment plan period. (Civ. Code § 5665(c).) Additional late fees may not accrue during the payment plan period if the owner is in compliance with the terms of the payment plan. (Civ. Code § 5665(c).)
Effect on Assessment Lien
A payment plan does not impede an association’s ability to record an assessment lien on the owner’s property in order to secure the assessment debt owed to the association. (Civ. Code § 5665(d).)
Default on Payment Plan
In the event that an owner defaults on the payment plan, the association may resume its assessment collection efforts from the point in time prior to entering into the payment plan. (Civ. Code § 5665(e).)
Payment Plans Not Subject to Inspection
Payment plans are not “association records” which are subject to inspection by an association’s members, other than the member who entered into the payment plan. (Civ. Code § 5215(a)(5)(B); See also “Records Not Subject to Inspection.”)
Pressure Washing
Modern sets of governing documents sometimes contain provisions that require owners to pressure wash the exterior of their properties and exclusive use common areas (i.e., patios or decks). Those provisions are rendered void and unenforceable during a “state or local government declared drought emergency.” (Civ. Code § 4736(a).)
“Pressure Washing” Defined
For the purposes of Section 4736, “pressure washing” means “the use of a high-pressure sprayer or hose and potable water to remove loose paint, mold, grime, dust, mud and dirt from surfaces and objects, including buildings, vehicles and concrete surfaces.” (Civ. Code § 4736(b).)
Manager Certifications & Designations
The designations and certifications obtained by a common interest development (CID) manager must typically be disclosed to an association’s board of directors. (See “Manager Disclosure Requirements.”) Professional designations and certifications available to CID managers are offered through the following HOA and real estate management organizations:
- California Association of Community Managers (CACM)
- Community Associations Institute (CAI)
- Community Association Managers International Certification Board (CAMICB)
- Institute of Real Estate Management (IREM)
Certification Overview
The following table provides an overview of the various certifications offered through the above organizations:
| Certification Acronym | Certification Name | Offering Organization |
| AAMC | Accredited Association Management Company | CAI |
| AMS | Association Management Specialist | CAI |
| ARM | Accredited Residential Manager | IREM |
| CCAM | Certified Community Association Manager | CACM |
| CMCA | Certified Manager of Community Associations | CAMICB |
| CPM | Certified Property Manager | IREM |
| LSM | Large-Scale Manager | CAI |
| MCAM* | Master of Community Association Management | CACM |
| PCAM* | Professional Community Association Manager | CAI |
| RS | Reserve Specialist | CAI |
*Denotes highest level certification for that organization
The ability to obtain one of the above certifications may be contingent upon whether the manager already obtained a lower certification offered through the issuing organization. Accordingly, managers who obtain a high-level certification within a particular organization often do not list any of the lower designations which he or she previously obtained through that organization.
Manager Disclosure Requirements
Certification Disclosures
Pursuant to Business & Professions Code Section 11504, managers of a common interest development (CID) are required to annually disclose to the association’s board of directors the following information:
- Whether or not the CID manager has satisfied the requirements of Business & Professions Code Section 11502 governing when the manager may be called a “certified common interest development manager.” (Bus. & Prof. Code § 11504(a).)
- The name, address, and telephone number of the professional association that certified the common interest development manager, the date the manager was certified, and the status of the certification. (Bus. & Prof. Code § 11504(b).)
- The location of his or her primary office. (Bus. & Prof. Code § 11504(c).)
- Prior to entering into or renewing a contract with an association, the common interest development manager must disclose to the board of directors whether the fidelity insurance of the common interest development manager or his or her employer covers the current year’s operating and reserve funds of the association. This requirement does not compel an association to require a common interest development manager to obtain or maintain fidelity insurance. (Bus. & Prof. Code § 11504(d).)
- Whether the common interest development manager possesses an active real estate license. (Bus. & Prof. Code § 11504(e).)
“Managing Agent” Disclosures
Civil Code Section 5375 additionally requires a prospective “managing agent” of a CID to disclose in a written statement certain information to the association’s board of directors “as soon as practicable, but in no event more than 90 days, before entering into a management agreement” with the association. The information which must be disclosed in that written statement includes the following:
- The names and business addresses of the owners or general partners of the managing agent. If the managing agent is a corporation, the written statement must include the names and business addresses of the directors and officers and shareholders holding greater than 10 percent of the shares of the corporation. (Civ. Code § 5375(a).)
- Whether or not any relevant licenses such as architectural design, construction, engineering, real estate, or accounting have been issued by the State of California and are currently held by the persons specified above. If a license is currently held by any of those persons, the statement must contain the following information: (a) What license is held; (b) The dates the license is valid; and (c) The name of the licensee appearing on that license. (Civ. Code § 5375(b).)
- Whether or not any relevant professional certifications or designations such as architectural design, construction, engineering, real property management, or accounting are currently held by any of the persons specified above including, but not limited to, a professional common interest development manager. If any certification or designation is held, the statement must include the following information: (a) What the certification or designation is and what entity issued it; (b) The dates the certification or designation is valid; and (c) The names in which the certification or designation is held. (Civ. Code § 5375(c).)
“Managing Agent” Defined – The term “managing agent” in this context does not include a full-time employee of the association or a regulated financial institution operating within the normal course of its regulated business practices. (Civ. Code §§ 5385, 4158(b); See also “Association Manager (Managing Agent).”)
Towing of Vehicles
The procedure through which an association may remove (tow) vehicles from its common area and/or exclusive use common area parking spaces is governed by the requirements set forth in California Vehicle Code (CVC) § 22658. Those requirements involve (1) the prior notice given to vehicle owners, (2) the written authorization required for tows, and (3) the mandatory reporting requirements to local traffic law enforcement and to the vehicle owner in certain circumstances. These requirements are discussed further below.
Circumstances for Towing of Vehicles
When a vehicle is improperly parked upon an association’s common areas, the association may have the vehicle towed under any of the following circumstances:
- Where “there is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22 inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner’s expense, and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the owner or person in lawful possession of the property” (CVC § 22658(a)(1)); or
- Where “the vehicle has been issued a notice of parking violation, and 96 hours have elapsed since the issuance of the notice” (CVC § 22658(a)(2)); or
- Where “the vehicle is on private property and lacks an engine, transmission, wheels, tires, or other equipment necessary to operate safely on the highways, the owner or person in lawful possession of the private property has notified the local traffic law enforcement agency, and 24 hours have elapsed sicne that notification” (CVC § 22658(a)(3)); or
- Where “the lot upon which the vehicle is parked is improved with a single family dwelling.” (CVC § 22658(a)(4)).
Authorization Given to Towing Vendor
An association’s towing vendor may not tow a vehicle without first having written authorization from the association. That authorization may be in the form of a general authorization or a specific authorization depending upon the circumstances giving rise to the tow:
General Towing Authorization
A general authorization may be given for the towing of vehicles in any of the following three (3) circumstances: (CVC § 22658(l)(1)(E).)
- Vehicles parked in fire lanes; or
- Vehicles unlawfully parked within fifteen feet (15’) of fire hydrants; or
- Vehicles parked in a manner that interferes with ingress or egress to, from or within the community.
In any of these three (3) circumstances, the general authorization would authorize the towing vendor to patrol the parking areas within the community and, in the towing company’s discretion and without additional authorization from the association, tow the offending vehicle. Upon claiming his/her vehicle towed under any of the above three (3) circumstances, the vehicle owner must be provided without charge: (a) a copy of the association’s general authorization with the towing vendor, and (b) a photograph taken by the towing vendor at the time of the tow that clearly depicts the parking violation for which the vehicle was towed. (CVC § 22658(l)(2).)
Specific Towing Authorization
In situations where an association seeks to have a vehicle towed in circumstances that do not fall within a general authorization, a representative of the association (i.e., its managing agent) must provide specific authorization to the towing vendor for that particular tow. Additionally, at the time of the tow, the association’s representative must be present somewhere within the community, though he/she is not required to be physically present at the location of the tow. (CVC § 22658(l)(1)(A).)
That specific authorization given by the association’s representative to the towing vendor must include all of the following: (CVC § 22658(l)(1)(B).)
- The make, model, VIN#, and license plate # of the vehicle to be towed; and
- The name, signature, job title, residential or business address and working telephone number of the association’s representative who authorized the tow; and the grounds for towing the vehicle; and the time when the vehicle was first observed parked in the community; and the time that the authorization to tow the vehicle was given.
When the vehicle owner claims his/her vehicle, the owner must be provided without charge a copy of the specific authorization. In providing this information, the towing vendor is required to redact the information pertaining to the association’s representative who authorized the tow. (CVC § 22658(l)(1)(C).)
Reporting Requirements
California Vehicle Code Section 22658 also imposes certain reporting requirements on both the Association and its towing vendor in connection with the towing of a vehicle:
Towing Vendor Reporting Requirements
If the towing vendor knows or is able to obtain from the association “the name and address of the registered and legal owner of the vehicle,” the towing vendor is required to immediately provide the vehicle owner with written notice of the tow, the grounds for removal, and also indicate the place to which the vehicle has been towed. (CVC § 22658(b).) If the towing vendor is unable to give such notice (i.e., if the towing vendor “does not know and is not able to ascertain” the information regarding the vehicle owner), and the vehicle is not returned to the owner within one hundred and twenty (120) hours, the towing vendor must send a written report of the removal to the Department of Justice and also file a copy of the notice with the facility where the vehicle is being stored. (CVC § 226583(c).)
Association Reporting Requirements
When authorizing a specific tow, the association’s representative must telephone the local traffic law enforcement within one (1) hour after authorizing the tow. If doing so is “impractical” for any reason, then local traffic law enforcement must be notified by the “most expeditious means available.” (CVC § 22658(f).) If the vehicle owner asks the association to tell him/her the basis for the tow, the association must state the grounds for the tow. (CVC § 22658(f).)
Liability for Invalid Tows & Damaged Vehicles
California Vehicle Code Section 22658 provides that towing vendors are generally not responsible in any situation for determining whether a tow authorized by the association is valid. (CVC § 22658(f).)
The towing vendor, not the association, is liable for any damage caused to towed vehicles. However, if it can be shown that the damage was attributable to an “intentional or negligent act” of the association, the association can be made liable. (CVC § 22658(l)(1)(D).)
Interrupted Tows
The towing vendor is required, at the vehicle owner’s request, to immediately and unconditionally set down the vehicle that is hitched and/or ready for tow but that is not yet in transit (i.e., the vehicle is still within the boundaries of the association’s development). (CVC § 22658(g)(1)(B).) In such a case, the towing vendor is entitled to payment from the vehicle owner of up to fifty percent (50%) of the towing charge if the association’s representative requests such payment on the towing vendor’s behalf. (CVC § 22658(h).)
Termites & Wood-Destroying Pests
An association is generally responsible for maintaining and repairing the common areas within the association’s development, and the owners are responsible for maintaining and repairing their respective separate interests (their lots or units). (Civ. Code § 4775(a); See also “Maintenance Responsibilities (Generally).”) When maintenance or repair is occasioned by the presence of “wood-destroying pests or organisms” (i.e., termites), Civil Code Section 4780 generally controls whether the association or the owners are responsible for such maintenance or repairs. The allocation of responsibility under Section 4780 is dependent upon the form of the association’s development (the CID), as well as any applicable provisions that may be contained in the association’s declaration (CC&Rs).
- Community Apartment Project – in a community apartment project, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
- Condominium Project – in a condominium project, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
- Stock Cooperative – in a stock cooperative, the association is responsible for the repair and maintenance of the common area occasioned by the presence of wood-destroying pests or organisms, unless otherwise provided in the CC&Rs. (Civ. Code § 4780(a).)
- Planned Development – in a planned development (or “PUD”), unless a different maintenance scheme is provided in the CC&Rs, 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. (Civ. Code § 4780(b).)
Delegation of Maintenance Responsibility to Association in Planned Development
Unless otherwise provided in the CC&Rs, the owners within planned developments are responsible for the repair and maintenance of their respective separate interests as may be occasioned by the presence of wood-destroying pests or organisms. (Civ. Code § 4780(b).) However, Section 4780 provides the possibility for the owners (the association’s members) to delegate that responsibility to the association:
“Upon approval of the majority of all members of the association, pursuant to Section 4065, that responsibility may be delegated to the association, which shall be entitled to recover the cost thereof as a special assessment.” (Civ. Code § 4780(b).)
Method of Treatment Employed by Association
The method in which the association treats wood-destroying pests or organisms (i.e., tenting, spot treatment, etc.), as well as the materials used in the treatment, are within the discretion of the board and is entitled to judicial deference. (See Lamden v. La Jolla Shores Clubdominium HOA (199) 21 Cal.4th 249, 270 (“Neither the Declaration nor Civil Code Section [4780] reasonably can be construed to mandate any particular mode of termite treatment.”).)
Removal of Occupants for Pest Treatment
There may be instances where the treatment of wood-destroying pests or organisms will require owners and occupants within the association’s development to vacate their respective units. In those instances, Civil Code Section 4785 grants the association the authority to “cause the temporary, summary removal of any occupant of a common interest development for such periods and at such times as may be necessary for prompt, effective treatment of wood-destroying pests or organisms.” (Civ. Code § 4785(a).)
Accommodations & Relocation Costs During Treatment Period – Occupants and/or owners which are required to vacate the association’s development are responsible for their own accommodations. (Civ. Code § 4785(b).) This is consistent with Civil Code Section 4775(b) which states that “[t]he costs of temporary relocation during the repair and maintenance of the areas within the responsibility of the association shall be borne by the owner of the separate interest affected.” (Civ. Code § 4775(b); See also “Relocation Costs.”)
Notice Requirements – When occupants and/or owners will be required to vacate their respective units, the association is required to give notice of the need to vacate to the occupants and the owners, not less than fifteen (15) days nor more than thirty (30) days prior to the date of the temporary relocation. (Civ. Code § 4785(b).) The notice must state (i) the reasons for the relocation, (ii) the date and time of the beginning of the treatment, (iii) the anticipated date and time of termination of treatment, and (iv) that the occupants will be responsible for their own accommodations during the temporary relocation. (Civ. Code § 4785(b).)
Delivery of Notice – Notice of the need to vacate is deemed complete upon either:
- Personal delivery of a copy of the notice to the occupants, and if an occupant is not the owner, individual delivery pursuant to Civil Code Section 4040, of a copy of the notice to the owner. (Civ. Code § 4785(c)(1).)
- Individual delivery pursuant to Civil Code Section 4040 to the occupant at the address of the separate interest, and if the occupant is not the owner, individual delivery pursuant to Civil Code Section 4040, of a copy of the notice to the owner. (Civ. Code § 4785(c)(2).)
“Occupant” Defined – For the purposes of Section 4785, “occupant” means “an owner, resident, guest, invitee, tenant, lessee, sublessee or other person in possession of the separate interests.” (Civ. Code § 4785(d).)