Do Our Balconies Require Inspection?

By Kelly G. Richardson, Esq. CCAL, HOA Homefront Column 

Kelly, I am on the board for our HOA, which is comprised of single family residences. Does the new balcony law pertain to our situation? Quite a few  of our homes have decks on the rear for a better view, all going through an architectural application to the architectural committee. Thank you, G.H., San Clemente

Dear G.H.: Civil Code Section 5551 is the statute created by 2019’s Senate Bill 326. That statute requires visual inspection of “elevated exterior elements” by January 1, 2025. If your HOA has only detached single family homes, per subpart “l” of the statute the inspection requirement does not apply. Also, the statute in subpart “b” says that it applies to condominium associations. So, the statute does not apply to planned developments. If the balconies are not HOA responsibility pursuant to your HOA CC&Rs, that is a third reason the inspection requirement does not apply to your HOA. Best regards, Kelly

Hello Mr. Richardson: Our HOA consists of four dwelling units (two buildings, each containing two units). Civil Code Section 5551, Section (l) states the law “shall apply to buildings containing three or more multifamily dwelling units.” I am interpreting that since we have only duplex structures we are not required to have the inspection. Is that correct? Sincerely, W. E., San Diego

Dear W.E.: You are reading Civil Code Section 5551 correctly. Subpart “l” says the requirement only applies to buildings of three or more attached units. A condominium association consisting only of duplexes would not have any buildings of 3 or more units. Therefore, the statute and its inspection requirement would not apply. Thanks, Kelly 

Hi Kelly: In our condominium association's governing documents it states that in any unit which also has a balcony, the unit owner is solely financially responsible to maintain the balcony. Recently, when one unit with a balcony was inspected per SB 326 there were some significant issues identified and subsequently corrected. The owners in the community were surprised to learn that the board decided that per SB 326 it was the responsibility of the association, and not the unit owner, thus all owners had to cover the costs of repair.  If the governing document is clear that the individual unit owner with the balcony is responsible does SB 326 change that and make the HOA responsible? Regards, F.B., Temecula

Dear F.B.: SB 326 is codified in Civil Code Section 5551. Per Civil Code Section 4775, the HOA takes care of common area in condominiums unless the CC&Rs say otherwise. By indicating your governing documents say otherwise, hopefully, you refer to your CC&Rs, this places responsibility upon the individual owners. If an “elevated exterior element” is not the HOA’s responsibility to maintain and repair, under Section 5551(b)(1), the inspection requirement does not apply. The HOA board cannot alter this allocation of responsibility, because amending the CC&Rs requires a vote of the membership. However, Civil Code 5551(m) creates confusion, stating that HOA boards “may enact rules or bylaws imposing requirements greater than those imposed by this section.” This is a drafting mistake because boards don’t normally have the power to amend bylaws and also because per Section 4775 maintenance and repair responsibility is allocated by the CC&Rs, not by rules or bylaws.

Sincerely, Kelly