Q: Our HOA is mandating that each unit in our complex be tented for termites. The HOA is stating there is precedent under California law to force homeowners to evacuate their residence for a 72-hour period if the board has mandated this tenting action. Does our HOA board have the right under California law to force homeowners to evacuate to permit tenting? — P.S. San Diego
A: Termite treatment in associations is often a controversial issue. Some years ago in La Jolla, the La Jolla Shores Clubdominium HOA board had decided, after consulting an expert, to spot treat termite infestations in the property. A homeowner believed the association was negligent in not tenting the buildings and sued the HOA. In the landmark 1999 case of Lambden v. La Jolla Shores Clubdominium HOA, the California Supreme Court adopted a rule of judicial deference toward HOA maintenance decisions, so long as the board observed the Business Judgment Rule. Presumably, your association has likewise obtained input from experts before deciding that tenting is the best approach.
It can at times be difficult to get residents to cooperate. Some residents find the selected date inconvenient, some do not make it a priority, and others simply fear the process of tenting their homes. Civil Code 4785 provides an important tool for HOAs regarding termite treatment. If the HOA provides at least 15 days advance written notice to the occupants and owner, and the occupants do not vacate the premises, the HOA can “cause the summary removal” of the occupant so that the treatment can proceed.
The association normally will notify owners and occupants well in advance of the upcoming treatment, and send each owner not only information from the termite treatment company about preparing their home, but also an acknowledgment form in which the occupants confirm they will vacate the home for the required dates.
The “summary removal” mentioned in the statute does not mean the HOA can physically eject the…