Association may be responsible to control spread of insect infestation


Question: I was hoping to get some feedback on an ongoing, and extremely frustrating, pest control issue I’ve been dealing with for years in my condo development. My building, not just my unit, has an infestation of Phorid flies, and I’m not getting anywhere with my association in terms of resolving the issue. I’ve attached pictures of two traps I set out, and the result is what fills up in a matter of 48 hours. I know for a fact several other units in the building are also affected. It’s disgusting and unsanitary, and I’m not sure what else to do. Over the years, my development has gone through several different property managers, all of whom have been made aware of this situation. They send local pest control out to treat the unit or spray the area, never addressing the underlying issue. I’ve not only spent a lot of money on pest control treatments, but I have lost thousands on rentals, as this situation is often unlivable. I’ve asked that they treat the building, clear the vents, flush the drains, etc. but they never seem to take me seriously. I’ve been trying to avoid any legal action, however, I’m afraid I’m at a point where I may need to consult an attorney. Any advice or recommendations? I’m desperate! — K.B.

Answer: Luckily I am not particularly squeamish, because the photos you sent would have sent a lot of our readers running for the hills. Suffice it to say, that’s a whole bunch of flies.

Your condominium association is responsible to maintain the common elements, and if the flies are breeding inside the common elements, I think there is a good argument that exorcising them is at least partly the association’s responsibility. I did a bit of research online, and it seems that Phorid flies (which look a lot like fruit flies) feed on decaying organic matter, and they often breed inside drains. The only solution appears to be removing the organic debris inside the drains — simply flushing them or poisoning them doesn’t do the trick. And, if they are traveling inside a stack that connects various units, I don’t think it’s possible to control the problem without a concerted buildingwide effort. Further, it’s possible that there’s a crack in a drain somewhere that is causing a huge infestation — and ferreting out such a defect is going to take a full-building inspection. It’s also possible that they are breeding in debris in a poorly kept unit, or even in the garbage room. They’re so small that, once they breed, they can readily spread everywhere. Given this, it’s clear that this problem is not going to get solved without the association taking an active role.

You may want to start by paying your own chosen exterminator to prepare a report on the flies and to create a recommended remediation plan. Given your constant losses, even if you don’t recover these costs it’s worth having a plan in hand that can be sent to the association along with a friendly demand. And, if the friendly demand doesn’t work, your lawyer will be able to attach the exterminator report to his or her own demand letter, or to a lawsuit if necessary. Given that the association has, from time to time, at least attempted to correct the problem, there is a reasonable possibility that, if presented with an explicit buildingwide remediation plan, they may be willing to take more extensive action. But, if they refuse, this is a situation where getting a lawyer involved may be necessary.

Q: Our HOA, which requires membership in a separate country club, is asking the community to vote to combine the HOA and the club into a single entity. They are saying that it would give the HOA the ability to foreclose on people who do not pay their club dues. Is this correct? — J.S.

A: A merger occurs when two unrelated corporations (such as your HOA and your club) combine into a single entity. In the case you describe (which would need to be approved by the members of the HOA and the club), the HOA would be the surviving entity. The former club property would now be owned by the HOA directly, and it would typically be set aside as a recreational area, subject to a separate use fee. This fee would be defined in the new governing documents as a use and maintenance fee, and it would be subject to collection by lien and foreclosure. This is an extremely complicated process, and there have only been a handful of mergers statewide, so having the right attorney to guide the association will be critical.

Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster LLP. Email questions to condocolumn@gmail.com. Please include your hometown.



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