Another Pest Inspection issue from our Ask the Brokers email bag this morning. It must be our week for wood rot in San Diego.
I bought a townhouse with attached garage in (San Diego) about 5 months ago. When I asked about the no guarantee verbiage on the Inside Termite Inspection certificate I was told that the exterior was covered by the Homeowners Association. Today I have an estimate for $400 for single treatment of two of my eaves and beams surrounding the patio and the management company and CCRs seem to concur that homeowner management company, due to our small $125 dues, does not cover any exterior maintenance. What can I do to the seller or just pay for and what about my regular homeowner’s policy.
Like every good “who should I sue” question, I will begin by reminding everyone that I am not an attorney. I will give my best opinion, but ultimately it is just that – my opinion.
My first question here is, who told you that the Homeowner’s Association covered the exterior maintenance in the first place? If it was the pest inspection company, then you don’t have much recourse as they are not a party to the transaction. If it was anyone else, then the issue of misinformation becomes a little stickier.
If your agent or the seller’s agent (acting on the seller’s behalf) gave you this information, then you may have grounds for a claim against them – Or, you may not. (Remember the part where I told you I’m not an attorney?)
Whether you were told this or not and by whom is probably of lesser import than the fact that you admit the CC&R’s and HOA documents are clear on this point. You will recall that review and approval of these documents was a part of your all-important contingency rights. By receiving the CC&R’s and Homeowner’s regulations during escrow and by subsequently removing your contingencies and closing the sale, a case could be made that you were effectively on notice and accepting of the limited HOA responsibilities.
Back to the attorney part – Only your lawyer, not I, could properly advise you on the extent to which others may be liable for misrepresentations when, in fact, you had official information to the contrary in your possession. Further, only your lawyer could suggest whether a failure on your part to read or understand these important disclosures provided to you by the seller during the contingency period would constitute a valid defense.
On a more general note, it sounds like the product you are referring to is what we call a “detached condominium”. Traditionally, we think of condominiums as attached units when, in fact, it is not the presence or absence of common walls which defines this property type but the nature of the ownership. In a condominium, the owner enjoys 100% ownership of the inside space (unit) but has a fractional, undivided interest in the land including common areas.
Most of the time (not all), condominium homeowner’s associations assume responsibility for exterior maintenance, including pest control and clearance. When the condominium is detached, it is more common to find that the homeowner assumes the exterior maintenance responsibilities. As a buyer, it is essential that you are absolutely clear on which applies in your particular case. Sadly, I have seen this detail misunderstood or overlooked too often.