State of California Senate Bills 326 and 721, also known as “The Balcony Bill”, require property owners/associations to conduct an inspection of exterior elevated elements (i.e., balconies, decks, patios, stairways, walkways) in apartment and condominium complexes. This ensures tenant safety and protects property owners from potential building defects.
In recent years, there have been numerous cases where structural failures of elevated exterior elements have led to financial loss, bodily injury, and even death.
The California Senate is addressing this issue by requiring owners and associations to conduct an inspection of all elevated exterior elements and, if necessary, perform the necessary repairs. This article will address:
(1) What components must be inspected;
(2) Who must inspect those components; and
(3) When the inspection must be completed.
What Components Must Be Inspected?
Section 3.5 of the 2009 California Building Standards Code has a specific requirement for elevated exterior elements:
“Exterior elevated elements shall be checked for visual evidence of structural movement or material deterioration, and repaired or replaced if necessary.”
In other words, all components of an elevated exterior element shall be inspected and repaired/replaced if necessary.
Who Must Inspect Those Components?
Under California Civil Code Section 1351, the owner of the property must obtain a written report describing the condition of exterior elevated elements (including balconies, decks, patios, stairways, walk-ways) and obtain repairs if required. The Association is responsible for ensuring that this inspection is completed within 60 days after substantial completion. However, since existing elevated components typically remain in place for decades or longer under normal conditions, SB 326 also provides an option for using an incidental repair process during which time the owner can provide documentation that:
(1) A qualified person has certified that the incidental work will not affect the stability of the structure; and
(2) The work is necessary for the continued maintenance and repair of existing facilities.
Who Is Considered a “Qualified Person”?
A qualified person is defined as: 1) A licensed contractor; or 2) An individual who has experience, training, and education to inspect and report on the condition of elevated exterior components (including balconies, decks, patios, stairways, walk-ways). This includes an engineer or architect with applicable licensing.
In either case, the written report must be signed by a qualified person.
When Must the Inspection Be Completed?
The inspection must be completed within any one year period beginning on January 1st. In other words, it can happen anytime during the year. However, SB 326 makes it clear that once the inspection is completed, owners/associations have no specified time limit to actually obtain the repairs if they are necessary.
What Are The Consequences for Failure to Complete This Inspection?
Owners who fail to have an inspection shall be subject to a civil penalty imposed by the city or county of not more than $1,000 per day for each violation. Associations which fail to ensure compliance with this section shall be liable for a civil penalty in an amount equal to the greater of either:
(1) A daily civil penalty up to one thousand dollars ($1,000) per unit; or
(2) One percent (1%) of all monthly common expense fees collected by the association during each month that no inspection is completed.
Who Must Comply With These Requirements?
These requirements apply to all private residential (townhouse, condominium, or single-family) owners and associations that own property with elevated exterior elements (including balconies, decks, patios, stairways, walk-ways). Owners must complete an inspection of these components; however it’s not clear who should actually perform the inspections. Should owners hire a specialist (e.g., engineer or architect) or can they hire their regular general contractor to do the work? Associations have similar questions about contractors for completing repairs. The only requirement in SB 326 is that qualified persons are used for writing reports and doing inspections.
Property owners/associations should consult with an attorney in their area to determine the best method for compliance.
What Are The Requirements For Repairs?
Once a written report from a qualified person is received, property owners have no specified time limit to make repairs if any elevated exterior element has been found to be structurally-unsafe or deteriorated. In other words, the owner can get the work done over a period of weeks, months, years or decades if desired. SB 326 makes it clear that owners are not required to repair elevated exterior elements at any one time and also that “a single violation shall not constitute evidence of a failure to maintain an entire condominium project.” This language helps resolve concerns about imposing mandatory repairs to elevated exterior elements without regard to the specific conditions of individual units.
What Is Covered Under This Requirement?
The scope of repairs covered under SB 326 is limited to “structural-safety and deteriorated” conditions only, which means that the work must be related to the actual support structures for elevated exterior elements including their foundations, posts, frames, girders, beams or any other required structural components. Work being done just because a component looks bad is NOT covered under this requirement.
For example: A property owner receives a report from a qualified person which indicates that one of his/her condominium units has wood rot on an exterior balcony. The report makes no mention about whether or not the structure itself has been damaged. In this case, the property owner does not have to repair the rot right away unless it’s determined that the damage has spread beyond its original location and structural components are affected.
In another example: A report from a qualified person indicates rust on an exterior stairway railing attached to a condominium complex. Even though there is no indication of deterioration or rotting, these types of cosmetic issues would NOT fall under SB 326’s requirements for repairs because they do not affect a building's strength or safety.
What Are Some Steps Owners/Associations Can Take?
Property owners/associations should document any suspected problems with elevated exterior elements by taking photos and writing down detailed notes about their condition in preparation for having them inspected. They should also create a plan for repairing any unsafe or deteriorated conditions that are found during the course of an inspection (including costs, contractors and timelines). This will help avoid financial penalties if they end up needing to make repairs in the future under SB 326.
When Required By Law, What Documents Should Be Maintained?
As with other requirements related to condo association records (e.g., reserve studies), owners/associations must maintain records showing compliance with this law for four years after all inspections are completed or one year after the board’s final decision on elevated exterior elements is made, whichever occurs later. Records should be produced whenever requested by an owner; seen by a qualified person doing a review of the property; or subpoenaed by a court.
What If An Owner/Association Claims They Will Not Have The Financial Means To Make Repairs?
In these rare cases, property owners may be able to get relief from the law’s requirements for repairs if they receive approval from their board of directors and 60 percent of the other unit owners through a vote. This action requires a two-thirds majority vote in favor within 30 days after all required repair work is complete.
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