Is Our Board Responsible for Balcony Inspections

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

Dear Kelly: Civil Code 5551 speaks to elevated structures attached to building such as balconies, decks, bridge-ways maintained by the Association. Does the code speak only to condominiums? Our board.says we are exempt from required inspection because the statute is for condos and we are a PUD - Is this correct ? Balconies and decks in this HOA are owner responsibility and bridge-ways are Association responsibility. Seems odd PUDs are not included since the code developed for a safety factor. Appreciate your always helpful articles. L.B., Martinez

Dear L.B.: Civil Code Section 5551 requires that condominium associations obtain inspection of “exterior elevated elements,” but does not mention planned developments, stock cooperatives, or community apartments. Many stock cooperatives and community apartments (also recognized as “common interest developments) are multi-story residential properties, but they are omitted from the statute. Also condominiums consisting of buildings of less than 3 attached units (think “duplex-style” buildings) are excluded. Exterior elevated elements which are NOT the HOA’s responsibility are also excluded from the inspection requirement.  Many 2-story “townhouse style” condominium HOAs are amending their CC&Rs to confirm balcony responsibility on homeowners instead of the HOA in order to eliminate the inspection requirement (and give individual homeowners more control over this building element).

Many inspection proposals go far beyond the requirements of Civil Code 5551 – ask your legal counsel to review inspection proposals to ensure they don’t go beyond what the law requires – unless your HOA desires a more comprehensive inspection.

By the way, the term “planned unit development” or “P.U.D” isn’t used in California - instead Civil Code 4175 uses the term “planned development.” Regards, Kelly 

Dear Mr. Richardson: I would like information on non-compliance with Civil Code 5551 balcony repair. The board will not spend funds on repairs. May I contact the city for enforcement? J. H., Cypress.

Dear J.H.: If the inspection of the elevated exterior elements reveals an immediate threat to safety, Civil Code 5551(g) requires the inspector to notify the local building code enforcement agency and provide a copy of the report within 15 days after the report is completed. The HOA is required to immediately take preventative actions until repairs can be completed. If the HOA is refusing to repair common area that is documented as needing repair, the directors are exposing themselves to liability, and even liability that might not be within the HOA’s insurance coverage. Remember, the Davis Stirling Act does not have an excuse of financial hardship – the HOA must fulfill its duties regarding repair and maintenance. Thanks, Kelly

Dear Kelly: Can we use reserves for the first round of balcony inspections required by Civil Code 5551?? A.W., Oceanside

Dear A.W.: Reserve funds may be used for the replacement or repair of the deteriorating items for which they were accumulated, per Civil Code Section 5510(b). Any other withdrawal of funds is considered “borrowing” from the reserve fund, and that borrowing is required by Civil Code 5515(d) must be restored to the reserve fund within one year. The cost of the inspection should not be that great that reserve borrowing is necessary – you may want to check to make sure the proposed inspection is not going far beyond the requirements of Civil Code 5551. If the inspection reveals the need for major repairs that cannot wait, temporary borrowing might be necessary. Best, Kelly