Balcony Failure

On August 30, 2019, Governor Gavin Newsom signed Senate Bill 326 into law.  The Bill added new Civil Code §§ 5551 and 5986 to the Davis-Stirling Common Interest Development Act and became effective on January 1, 2020.

In short, new Civil Code § 5551 applies to condominium buildings containing three or more units and requires associations in applicable condominium projects to perform a periodic inspection of condo balconies and other load bearing elements that extend beyond the exterior walls of the building—such as decks, stairways, walkways, and their railings—which are supported primarily by wood or wood-based products and elevated more than six-feet above the ground (“Exterior Elevated Elements”). 

Additionally, new Civil Code § 5986 abolishes pre-conditions and limitations to a board’s authority to commence construction defect litigation against the community’s developer, and provides that if the association has reason to believe that the applicable statute of limitations will expire, the board shall have authority to commence construction defect proceedings notwithstanding any limitations (such as the requirement to obtain a member vote) contained in the governing documents. The authority is vested solely in the board members who are not affiliated with the developer, and developer-affiliated directors are not allowed to participate in the vote.

Furthermore, § 5986 provides that any limitation or precondition, including, but not limited to, requiring a membership vote as a prerequisite to the board’s commencement and pursuit of a construction defect claim contained in the governing documents is null and void, unless the provision imposing limitations was adopted solely by the non-developer affiliated members of the association as a CC&R amendment.

Our previous publication providing a more detailed summary of the contents of Senate Bill 326 can be found by clicking here.

Since its enactment, associations have inquired about practical guidance about how to best prepare for the inspections of these Exterior Elevated Elements mandated in the bill.  Here are some tips on efficient preparation for compliance with the new mandate:

  • The first inspection required by Senate Bill 326 must be performed by January 1, 2025, therefore associations should prepare now by creating a line item in their budget to afford the upcoming expense of the inspection.
  • If possible, associations conduct the inspection well in advance of the January 1, 2025 deadline, as licensed architects and structural engineers will be less available as the deadline approaches.
  • For newer construction condominium buildings, conduct the inspection as soon as possible in order to reveal any potential construction defects before the expiration of the construction defect statute of limitations of ten (10) years.
  • While Senate Bill 326 does not apply to Exterior Elevated Elements made of materials other than wood, association’s with Exterior Elevated Elements that do not appear to be made of wood should confirm that these structures do not consist of a non-wood material over a wood substructure, such as a concrete topper or tile.
  • Boards should enact reasonable rules to regulate the placement of potted plants, artificial turf, and other objects or materials that trap moisture on Exterior Elevated Element surfaces, in order protect these components.
  • Try to time the inspection to coincide with upcoming common area projects.  For example, if a common area project requires scaffolding, the scaffolding can be utilized for conducting the inspection as well.
  • If a construction project is planned that includes work to Exterior Elevated Elements covered under Senate Bill 326, associations should attempt to incorporate an inspection that meets the requirements of the bill into the warranty period and scope of work.

Proper preparation for compliance with Senate Bill 326 is paramount, as it can lead to substantial savings which can offset the forthcoming costs of the required inspections.  Please do not hesitate to contact our offices with any questions you may have regarding the new requirements and changes set forth by this bill.