When you get a call or email from a resident who is frustrated, concerned or freaked out about pests, what are you and your fellow board members obligated to do? Whether it?s snakes, roaches, rabbits, coyotes, wasps, rats, mice, bats or any other common household or garden pest, where does the responsibility for pest control end for the resident and when does it become a communal problem for the homeowner or community association to solve?
In theory, the unit owners are responsible for pest control within their own dwellings and exclusive use areas, and the HOA is responsible for infestations affecting anything in the common areas.
Of course, the legal theory sometimes doesn’t match up well with reality, and no attorney in the business of drafting association covenant documents can possibly foresee every possible eventuality and describe the solution and exact division of responsibility in detail.
When it comes to responsibility for pest control and eradication, it will take goodwill and common sense on the part of both residents and the board. This is especially the case because when there is an infestation affecting both private and common areas, the eradication effort needs to be coordinated and simultaneous.
Pests Can Be Surprisingly Hard to Eradicate
An association’s attempts to eradicate pests can be complicated by a number of unforeseen factors. For example, your pests may be impossibly cute, causing their eradication to traumatize the children who live in or visit your development. But even humane methods of removing cute pests can bring about problems.
That’s what happened to a Broomfield, Colo. HOA. They were faced with a rabbit problem and initially planned to kill the precious little rodents – until they heard an outcry from their residents.
“What do I tell my granddaughter when the bunnies are gone or she sees them in a trap? What are we going to say? We killed the rabbits because they ate our flowers,” said one grandmother.
In the end, the HOA in question pardoned the pesky rabbits and sought for a way to trap and relocate them elsewhere. It was at this point that the HOA ran into a complex series of local laws that regulated how far away from the capture location animals can be relocated. For example, cottontail rabbits had to be relocated within 10 miles, while other species of rabbits had different regulations. Some species required them to get a special permit from the Colorado Division of Parks and Wildlife.
You shouldn’t have much trouble with your common roaches, rats and wasp infestations. But for more unusual animals you’d better check with local wildlife officials before trying a relocation process.
How State Laws Treat Pest Infestations
Your state law may shed some general light on who’s responsible for what. For example, California Civil Code Section 1364 (The Davis-Sterling Act) spells out:
(a) Unless the Declaration 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.”
But note that the law defers to the Declaration, which, in most cases, is your association’s CC&R document. This state law, and likely the law in your state, only kicks in only if your documents don’t adequately delineate responsibility.
California law also has special provisions for termites and other wood-destroying pests that allows the association to take control of the situation and prevent the infestation from spreading to other units.
Pest Infestations Caused by Humans
Sometimes there’s no direct cause for pest infestations. Mouse and snake infestations just happen, regardless of how much communities do to dissuade them.
But sometimes residents do cause pest-related problems (e.g., an old widower who enjoys feeding stray cats). In this case, documentation is key. If a problem resident can be identified (preferably via multiple witnesses), your eradication efforts need to be combined with one or more registered letters or other formal notices. If the problem behavior does not stop, the association may have cause of action to sue the problem resident (or, if it’s a renter, the owner) to cover the association’s eradication costs.
Paying for Pest Extermination-Related Relocation
State law varies on what party should pay for relocation. In California, for example, the Davis-Sterling Act says that if you have to relocate a family for fumigation or other measures, the association must pay for the relocation.
Check with your state’s laws. If they aren’t clear, it’s a good idea to address this squarely in your association’s CC&Rs and vote on how you want to handle this in your community. However, as a practical matter, if the association wants to retain the authority to force a family to relocate temporarily while their home is tented (to prevent further damage and infestation, for example), it makes sense to have the association pick up the costs, too.