By David Swedelson and Cyrus Koochek, Community Association Attorneys at SwedelsonGottlieb
Since the old Davis-Stirling Act was made into law in 1985, there has been a small debate over whether an owner or their association is responsible for temporary relocation costs incurred when owners in a common interest development are required to vacate their units or homes for common area repairs. Former California Civil Code Section 1364(c) stated that the “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.” On its own, this provision seems clear enough; however, because this language was found in the code section that also dealt with termite fumigation, and because it followed the provision dealing with termite fumigation, some owners were confused and debated the issue with their association’s board and management, claiming that unless the relocation was as a result of a treatment for termites, their association had to pay their relocation costs. They were confused and wrong.
Taking the location of this provision into context, it is easy to understand why confusion arose. Immediately preceding the temporary relocation costs provision was a subsection devoted to explaining whether the association or the individual owners are responsible for repairs and maintenance of areas subject to wood-destroying pests and organisms. This had led to some owners and others to question whether the temporary relocation costs provision was intended to apply only to wood-destroying pests and organisms, or for all circumstances resulting in temporary relocations. There really was no debate, as the section that dealt with temporary relocation was separate from the section dealing with wood destroying pests. But it was apparently confusing.
There is no longer any reason to debate this issue, as effective January 1, 2014, the new Davis-Stirling Act addressed the confusion. The temporary relocation provision has been incorporated into new Civil Code Section 4775, which seems to clear up any confusion. Although the actual language of the Civil Code relating to temporary relocation costs hasn’t changed, the provision has been rearranged so as to accompany the general provision governing maintenance and repairs, and it now precedes any mention of wood-destroying organisms and pests.
The California Legislature apparently acknowledged the possible confusion, and it clarified that the temporary relocation costs an owner must bear apply globally and not just in circumstances relating to relocation required for fumigation or other treatments for wood-destroying organisms and pests. The statute is now clear that during repairs and maintenance in areas for which the association is responsible, all temporary relocation costs will be the responsibility of the owners.
Follow this link for an article previously prepared by David Swedelson that deals with Termites, Fumigation and Resident Relocation.
David and Cyrus are condo attorneys and HOA lawyers. They can be contacted via email: firstname.lastname@example.org