“Elevated Elements” Must Be Inspected Under New Law

A balcony collapsed in Berkeley in 2015, causing six deaths and injuring seven. Consequently, Senate Bill (“SB”) 721 passed in 2018 and took effect in 2019, creating Health and Safety Code 17973. This law now requires inspection of elevated balconies, stairways, walkways, and other “exterior elevated elements” every six years. The new law exempts Davis-Stirling Act associations but applies to non-residential common interest developments.

SB 326, introduced and passed this year, addresses Davis-Stirling Act common interest developments by adding a new Civil Code Section 5551 to take effect on January 1, 2020. HOAs must hire a licensed structural engineer or architect to perform a reasonably diligent visual inspection on a sample of exterior elevated elements. The first inspection must be completed by 2025 and repeated every nine years afterward. It applies to balconies, walkways, and other above-ground elements attached to the buildings which are at least six feet above ground level and which the HOA are responsible for maintenance or repair.

The law applies to multi-unit buildings consisting of at least 3 or more units and so would not apply to condominium projects consisting solely of detached single or duplex structures.

The inspection is “visual,” meaning the inspector will not be required to dismantle the exterior elevated elements, but the inspector is required to generate a random list of locations to inspect prior to beginning. The inspector must generate a written report, and if the report indicates immediate threat to safety, the inspector must provide the report to the HOA immediately upon completion and to the building and safety department within 15 days. The HOA is then required to immediately take preventative measures and actions to keep persons away from the element until repairs have been accepted by the building and safety department.

The report must list the type of components inspected; the waterproofing in place to protect them; their current condition; their expected future performance and remaining useful life; and recommendations for any necessary repairs or replacement.

The reports from the inspections must be kept for “two inspection cycles,” meaning 18 years. Other than governing documents and minutes, this is now the longest recordkeeping requirement for HOAs.

This new law is detailed, and all the details cannot be recited in the space of this column. Associations and their managers should check with legal counsel to make sure their inspection programs follow the applicable legal requirements.

It remains to be seen how easy or difficult it will be to obtain these inspections. Since the issue is safety, will engineers or architects be able to obtain insurance for these reports, or will they insist that the HOAs indemnify them from any liability? Hopefully good inspectors will be available for this important work.

Since the inspections are visual only, this does not guarantee that a particular stairway, balcony, or walkway is safe, but only that obvious signs of weakness are not evident. Boards and managers should not be lulled into a false sense of security and keep up good routine maintenance including the waterproofing elements which protect elevated elements of the building.

SB326 also contained provisions affecting HOA construction defect actions and will be addressed in a later column.

To read any California law or pending bills, visit www.leginfo.legislature.ca.gov, the site of the California Legislature.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.