HOA Law Blog
Condominium Balcony, Stair and Walkway Inspections and Repairs: January 1, 2025 State-Mandated Deadline.
Background
On January 1, 2020, the State legislature added California Civil Code § 5551 to require condominium associations with certain elevated exterior elements (“EEEs”) such as decks, balconies, walkways, stairs, and related railings to be inspected by January 1, 2025. This new law is often referred to as the “Balcony Bill” or SB326 as that was the bill number before being passed into law in year 2019. The cause for this legislation was due to the collapse of a balcony that caused several deaths and so the purpose of these inspections is to make sure EEEs are safe to use and if unsafe, limit access until such EEEs are repaired.
What is subject to inspection?
Condominium associations (this law does not apply to Planned Developments) are required to inspect certain load-bearing components and the waterproofing systems of EEEs.
-For load-bearing components, these are EEEs components (i) extended beyond the exterior walls of the building to deliver structural loads; (ii) elevated more than 6 feet above ground level; (iii) designed for human occupancy or use, and (iv) supported in whole or in substantial part by wood or wood-based products.
-Exclusions: Multifamily dwelling buildings with two or less units; commercial condominiums; and industrial condominiums.
Who inspects the EEEs and what to expect?
-A licensed architect or structural engineer* must perform the work. (Note*: AB 2114 is a current bill that may be passed in the next few months that would allow licensed civil engineers to perform the inspections). LICENSED GENERAL CONTRACTORS are not authorized by this new law to perform the EEEs inspections to comply with Civil Code § 5551. Licensed contractors would be expected to perform any necessary repairs.
-The inspector will perform visual observations of a statistically significant sample of EEEs to determine whether the EEEs are in a generally safe condition in accordance with applicable standards. The visual inspection is the least intrusive method necessary to inspect load-bearing components, including visual observation or visual observation with the use of moisture meters, borescopes, or infrared technology. The inspector may determine further investigation is needed based on their professional judgment.
Interestingly, only some but not all of the EEEs in your development may need to be inspected. In regards to balconies, our office has seen some balconies (for example, balconies that are not cantilevered) within the development but not others meeting the statutory criteria. And even if your association has no balconies, it might have other EEEs subject to inspection, such as stairs and walkways. If your association is unsure whether Civil Code § 5551 applies, ask the architect/engineer for clarification and consult with your association’s legal counsel as needed. If your association is already on a tight or underfunded budget, you don’t want your association to pay for unnecessary inspections and incur additional repair costs at this time. Consulting with legal counsel about whether your association is subject to Civil Code § 5551 may provide immediate savings in time and expense, and allow for better future budgeting.
Timeline
If your association hasn’t explored whether it is required to have its EEEs inspected, you are behind. Popular and competitively-priced licensed structural engineers and architects that perform inspections of EEEs may be booked up through the end of the year which is one of the reasons why a new bill is being considered by the State to allow civil engineers to perform the inspections.
-1st inspection completion date: Complete by January 1, 2025 and then every nine (9) years thereafter. Exception: Newer developments and construction completed after January 1, 2020 have six (6) years since the issued certificate of occupancy to complete the first inspection.
-Budget accordingly, it is likely that a few hundred to a few thousand dollars for the EEEs inspection is required, depending on the circumstances such as the number of EEEs, conditions of the EEEs, market rate for inspections, etc. If you know your development has EEEs in a poor state, then your association should also start budgeting for possible required repairs after the inspection as repairs may cost thousands of dollars per EEE.
What happens after inspection?
-Your association will receive a report that is required to be incorporated into the reserve study.
-Depending on the condition of your EEEs, the architect/engineer may require more intrusive observations, including destructive testing, if there is an indication of safety-compromised damage, e.g., opening part of an EEEs surface to reveal extensive dry rot wood damage.
-If the architect/engineer advises that any of the association’s EEEs pose an immediate threat to the safety of the building’s occupants, the expert is required to provide a copy of the inspection report to the association, as well as a copy to the local code enforcement agency, and this is to be done within fifteen (15) days of completion of the report. The architect/engineer may report dangerous conditions even sooner as required by other law. The very real result is that certain balconies or stairs may be “yellow-tagged” or “red-tagged” by your City with a notice of a violation and notice to comply after receiving the inspection results resulting in the EEEs being barred from use until it is repaired. When EEEs are red-tagged, your association is required by Civil Code § 5551 to take immediate action to limit access to the affected area. Your association may then be dealing with angry residents who cannot use their balcony, deck, or stairway until the required repairs are made.
-If your association is underfunded and needs more funds for inspections and repairs, boards need to remember that any levy of a special assessment takes time.
Liability
If your association doesn’t perform the required inspections timely, your association is exposed to liability. Possible claims and issues include:
-Breach of fiduciary duties by the Board of Directors
-Breach of the CC&Rs and lawsuit to force the association to complete the inspection
-Successful claims of negligence for personal injury and/or property damage claims if the inspection was required and not timely performed resulting in someone’s injury
-Some members of our industry express concern about the possible lack of insurance coverage for untimely inspections and resulting injuries.
Of course, the real concern is if there are any safety concerns that need to be addressed irrespective of the liability issues.
Your Board may have already determined your association is not subject to EEEs inspections but how did it reach that decision? Boards and associations are afforded protection from liability for their decisions, including the decision to not perform certain actions, when supported by the consultation of experts such as your managers, legal counsel, engineers, and architects.
Next Steps
Contact your manager immediately and a licensed structural engineer or architect to discuss whether your association needs EEEs inspections. Your association may also want to consider seeking legal counsel as needed for further advice on the applicability of EEEs inspections, funding options, and the review of any large contracts for the inspections or resulting required repairs. These experts are here to guide your association to create a safer community.