Under California Law, a homeowner association may require its residents to temporarily vacate their homes for fumigation and tenting in order to treat for termites. More specifically, under California Civil Code Section 4785, an association may “…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.”
To meet the notice requirements of Civil Code Section 4785, an association needs to take the following steps. First, an association should prepare a notice that specifically states “…the reason for the temporary relocation, the date and time of the beginning of treatment, the anticipated date and time of termination of treatment, and that the occupants will be responsible for their own accommodations during the temporary relocation.” Second, an association must provide a copy of the notice to the occupants of the separate interest and to the owners of the separate interest, if the owners do not reside in it. Third, the notice needs to be provided within a specific time frame, i.e., not less than 15 nor more than 30 days before the date of temporary relocation. Lastly, an association must provide notice to the occupants by personal delivery or individual delivery pursuant to Civil Code Section 4040. If the occupants do not own the separate interest, then the association must also provide notice to the owners by individual delivery.
If a person refuses to vacate after an association provides notice in compliance with Section 4785, then an association may seek a court order for temporary, summary removal. This issue was the subject of a recent unpublished case entitled Golden West Patio Homes Owners Association v. Artedi B. Cortez No. G060606 (Cal. Ct. App. Oct 28, 2022).
In this case, Golden West Patio Homes Owners Association (“Association”) is a homeowner association in Westminster, California. In the spring of 2019, the Association decided to fumigate and tent the buildings in the development. Mr. Artedi Cortez and his wife resided in one of the units in the development; however, they refused to cooperate with the Association, believing there were other viable treatment methods besides fumigation and tenting.
As a result, the Association filed an ex parte application under Civil Code Section 4785 for summary removal and immediate possession of Mr. Cortez's unit and another unit in the development. Mr. Cortez appeared in court and opposed the motion; however, the Association prevailed, and the trial court ordered Mr. Cortez to temporarily remove people, animals, and perishable items from the unit. The court also enjoined Mr. Cortez from interfering with the scheduled termite fumigation. After the hearing, the Association filed a separate motion for $8,235.00 in attorney's fees and $1,253.56 in costs. In January 2020, the trial court awarded the Association most of its attorney's fees and costs.
Although Mr. Cortez did not appeal the trial court's removal order under Section 4785, he did appeal the award of attorney's fees and costs. On appeal, the appellate court upheld the trial court's award of attorney's fees and costs. The appellate court stated: “The Association achieved its main litigation objective when it obtained the order permitting it to take temporary possession of Cortez's unit for the purpose of tenting and fumigating the structure for termites. The Association was required to obtain the order because Cortez's refusal to vacate and cooperate with the planned fumigation prohibited the Association from performing its maintenance duties under the CC&Rs.” The appellate court also stated, “Once the trial court determined the Association to be the prevailing party in the action, it had no discretion to deny attorney fees under section 5975.”
As illustrated in the Golden West Patio Homes case, an association can obtain a court order to remove uncooperative residents and recover legal expenses. An association planning to fumigate and tent should consult with legal counsel in preparing a notice compliant with Section 4785 and with temporary summary removal of residents if necessary.