Q&A: Pest Infestation

Q. I was wondering about pest control responsibility. I live in a condo building in South Florida, and I’m getting constant roaches in my unit. I’m a very clean person and had no problem for 10 years. Obviously the building is infested. Who is supposed to fix it?

                          —Not My Responsibility

A. “What you are actually asking is whether the association has a duty to eradicate the problem that is emanating from outside your unit,” says attorney Jay Steven Levine of Levine Law Group, which has offices in Boca Raton, North Palm Beach, and Indian Harbour Beach. “In determining whether there is a duty, the first place is to look at the condominium documents to determine whether the association has a duty to provide exterminating services. If the duty lies with the association, then the association must take whatever measures are necessary to eliminate the problem that you are experiencing within your unit. If instead the duty does not exist within the condominium documents, then the next evaluation is whether the association is undertaking to provide exterminating services within the unit even though the condominium documents are silent on the subject. If the association has undertaken that task, even where the condominium documents are silent, then the association has assumed the duty and would have the obligation to take reasonable measures to eradicate the problem. 

“Where the condominium documents are silent on the association performing exterminating services within the unit, and the association has not undertaken this task voluntarily, then the next evaluation is whether the problem is emanating from the common elements. If that is the case, then the association has a statutory duty to treat the common elements to eliminate the infestation. The bigger issue would be if it is not the common elements causing the problem, but some other unit within the condominium. Under these circumstances, the obligation of the association to eliminate the problem depends on whether the condominium documents provide that the association has the duty to enforce the condominium documents. A provision in the condominium documents to be enforced would be by the typical provision that prohibits the conduct of any nuisances within the condominium – and infestation would constitute a nuisance. If the condominium documents provide that the association generally has a duty to enforce  those same documents, then the association would have a duty to eradicate any infestation in any unit found to be the cause of the problem.

“If instead the condominium documents do not provide that the association has a duty to enforce the documents, then the association would not have a duty to enforce against a nuisance violation; there is a reported court case that has held that the association does not have a duty to enforce the documents where the documents simply provide that the association may enforce the condominium documents, but there is no language imposing a duty of enforcement upon the association. In that event, the association did not have the responsibility to address this problem, except when necessary to treat a common element causing the problem. 

“Regardless of whether the association has a duty, the association certainly has a power to enforce and to prevent the nuisance from continuing. You should write to the association requesting that the association determine the cause of the infestation and provide proper treatment to prevent infestation inside your unit.”

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