Q&A: Homeowners have a legal right to be notified when HOAs spray pesticides near their units

Question: I live in a high-rise where each unit has a private balcony. A dog walker routinely takes my next-door neighbor’s small dogs for off-site exercise and grooming. The minute they leave, my neighbor springs into action with aerosol pest control spray cans. Everything is saturated with that spray, including the outdoor balcony. Even if I shut all doors and windows, the spray finds its way into my unit and makes me choke. She also goes away on weekends, but before she goes, she activates a type of “total release fogger” to fumigate her unit while she’s gone. The fogger is toxic and makes its way into my home.

That’s not all. Our association’s swimming pool is above-ground and is surrounded by lots of vegetation. The gardeners constantly saturate the flowers and shrubs with a chemical spray that makes me sneeze and my eyes sting. It even makes my neighbor’s arms break out in a rash. The management company and our board won’t tell us what the substance is being sprayed by the pool and they refuse to intervene in the problem I have with my neighbor’s toxic fumes. Is there anything that can be done about these serious issues?

Answer: There is a new California law that governs homeowner association use of pesticides, including aerosol pest sprays and total release foggers, but the statute does not apply to owners. However, the problems you are experiencing with your neighbor might be considered a “nuisance” that you can take action against.

Rather than wait, it is always best to try and resolve situations between neighbors as soon as a problem arises. If you are on a first-name basis with your neighbor, a direct approach is probably the best. Temper her likely anxiety by explaining that you understand her actions are not intentional but that the pest control she is using is having a serious effect on you. See if you can agree on a pest control method you both can be happy with.

If she is unwilling to assist you in resolving the problem, send a short letter to the board asking for assistance in reaching an understanding on the types of pest control individual owners can use within their condominiums, and the boundaries for that usage. If that does not work, suggest that your neighbor join you in mediation. Perhaps a neutral person will be able to help the two of you resolve the issue peacefully and to your mutual satisfaction. If you continue to be harmed or inconvenienced by your neighbor’s actions then you may consider filing a lawsuit as a last resort.

With regard to the association’s responsibility, the new law, Civil Code section 4777, provides enhanced protections for homeowners in common-interest developments. When pesticides will be applied to common areas or specific units, notice must be given to those residents who could reasonably be impacted by the pesticide, and that doesn’t just include the owner of a specific unit being sprayed. It includes any units alongside, above or below where the spraying will take place.

This statute defines “pesticide” to mean any substance, or mixture of substances, that is intended to be used for controlling, destroying, repelling, or mitigating any pest or organism, excluding antimicrobial pesticides as defined by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136(mm)).

The law further provides that the notice must be substantially the same as the written notification received under existing law had the pesticides been applied by a licensed pest control operator. That means the notice must use words with common and everyday meaning, must provide the name of the pest or pests to be controlled, the name and brand of the pesticide product — and the approximate date, time, and frequency with which the pesticide will be applied.

It also must include the following statement taken verbatim from the statute:

“CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.

“If within 24 hours following application of a pesticide, a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed healthcare provider, or the California Poison Control System (1-800-222-1222).

“For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”

This notice must be posted conspicuously in the association’s common area at least 48 hours prior to the application of the pesticide. If posting is not practicable, then the association must provide individual notice to the impacted owners. If pests pose an immediate threat to health and safety, preventing the association from giving timely notice, then the notice must be posted as soon as practicable, but not later than one hour after the pesticide was applied.

For non-urgent pesticide-related concerns, owners should write their board asking for a resolution to pest-control issues. If the board fails to adequately resolve those issues, they should consider enlisting the assistance of the Los Angeles City Attorney’s Dispute Resolution Program, which offers one-on-one mediation and informal resolution assistance between aggrieved parties.

The process is voluntary and all sides are encouraged to participate. There is no cost for this service and neither side needs to hire an attorney. This highly effective process strives for conciliation and mutual resolution. Contact (213) 978-1880.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.