SB 326 THE BALCONY BILL
THE LAW REQUIRING HOA’s TO PERFORM INSPECTIONS OF BALCONIES
IT’S A NEW LAW AND ITS IMPORTANT
The following information is provided by the Adams/Stirling law corporation
On August 30, 2019, Governor Newsom signed Senate Bill No. 326 (S.B. 326) into law, adding two new statutes to the Davis-Stirling Act. Civil Code section 5551 adds a requirement for associations to perform inspections of balconies and other exterior structural elements that the association has an obligation to maintain. Civil Code section 5986 invalidates and voids developer friendly provisions in governing documents that require homeowner votes prior to filing of a construction defect lawsuit. Below is an overview of the important points you need to be aware of regarding these new laws, which went into effect on January 1, 2020.
Inspections Required. Beginning January 1, 2020, associations with buildings that have three or more units must inspect elevated load-bearing structures which are supported substantially by wood. (Civ. Code §5551(l).) The inspector must submit a report to the board providing the physical condition and remaining useful life of the structures and their associated waterproofing systems. The statute does not change who is responsible to maintain, repair or replace balconies or other elevated structures. It imposes inspection and repair obligations on HOA’s as to balconies and/or elevated structures which associations are already obligated to maintain, repair or replace.
Dry Rot Defined. The term "dry rot" is a misnomer. Wood does not rot when it's dry. For decay to occur, moisture must be present before fungi can feed on the wood. Like viruses and bacteria, fungal spores are microscopic and travel through the air. The spores act as seeds which grow when they land on moist wood products. When they plant themselves into wood, they feed on the wood's cellulose. Cellulose is what gives wood its strength. As the fungi consume cellulose, the wood weakens. Without moisture, fungi can't grow. Thus, the importance of keeping all waterproofing systems well-maintained. That is why the Davis-Stirling Act requires a thorough inspection of waterproofing components such as flashings, membranes, coatings, and sealants. (Civ. Code 5551(a)(1).)
Repairs.
Fungi (like termites) spread throughout a structure as they feed on wood. As a result, dry rot can be difficult to treat. To stop the destruction, all decayed wood and fungi must be removed. The longer it goes untreated, the weaker the wood becomes until it collapses without warning. See: Balcony Maintenance & Repairs
Cantilevered balconies that require invasive testing. Balconies supported by posts that require invasive testing under the Davis-Stirling Act.
Elevated Structures Defined. Required inspections apply to load-bearing components and associated waterproofing systems. Load bearing means those components that extend beyond the exterior walls of the building to deliver structural loads to the building from decks, balconies, stairways, walkways, and their railings, that have a walking surface more than six feet above ground level, that are designed for human occupancy or use, and that are supported in whole or in substantial part by wood or wood-based products. (Civ. Code §5551(a)(3).)
#1. Cantilevered balconies constructed of wood must be inspected.
#2. Balconies supported by wood posts require inspection.#1. Cantilevered balconies constructed of wood must be inspected.#3. Balconies supported by the main structure do not require inspection since they cannot collapse.#4. Balconies partly supported by the structure and partly cantilevered require inspection.#5. Exterior stairs and landings attached to wood require inspection.#6. Elevated walkways supported by wood structures must be inspected.#7. Balconies made entirely of concrete and steel do not require inspection.
NOTE: Elevated structures that do not require inspection under Civil Code §5551 still require a diligent visual inspection for purposes of an associations 3-year cycle of inspections for their reserve study. This includes concrete balconies.
Townhouse Balconies. A townhouse is a form of construction, not a form of ownership. A townhouse can be defined as a condominium or a separate interest in a planned development. If the townhouse is a condominium, responsibility for balconies will depend on how a condominium unit is defined. If the unit's boundaries are the unfinished surfaces of the interior walls, ceilings and floors, the townhouse structure is owned in common by the membership. That makes the association responsible for repair and replacement of the structure unless the CC&R’s clearly state otherwise. (Civ. Code §4775.) If a unit's boundaries are defined as extending to the exterior surfaces of the townhouse, the structure becomes part of the unit and is the responsibility of the homeowner, unless the governing documents state otherwise.
If townhouses are defined as a planned development, homeowners own the structure and the lot upon which it was built. That means homeowners are responsible for their own balconies. The balcony bill does not apply to planned developments, only to condominiums.
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