Elevated Element Inspections Required
Beginning January 1, 2020, SB 326 requires that elevated load-bearing structures in condominium developments with three or more units per building be inspected to ensure they are substantially supported by wood. (Civ. Code § 5551(l)) The inspector must submit a report to the board that provides the structures' physical condition, remaining useful life, and associated waterproofing systems. The statute does not change who is responsible for maintaining, repairing, and replacing balconies or other elevated structures. It imposes inspection and repair obligations on HOAs regarding balconies and/or elevated structures that associations must repair and replace. Inspectors will primarily look for dry rot and termite damage.
Dry Rot Damage. The term "dry rot" is a misnomer. Wood does not rot when it is dry. For decay to occur, moisture must be present for fungi to feed on wood. Like viruses and bacteria, fungal spores are microscopic and travel through the air. The spores act as seeds that grow when they land on moist wood products. They feed on the wood's cellulose when they plant themselves into wood. Cellulose is what gives wood its strength. As the fungi consume cellulose, the wood weakens. 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.
Condominiums Subject to Inspections
The inspection requirement applies only to elevated structures in condominium developments, not to planned developments. (Civ. Code § 5551(b)(1))
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 the balconies will depend on how the 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 repairing and replacing the structure unless the CC&Rs 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 homeowner's responsibility unless the governing documents state otherwise. NOTE: Boards should have their documents reviewed by legal counsel. If townhouses are defined as a planned development, homeowners own the structure and the lot upon which they were built. That means homeowners are responsible for their balconies.
Stock Co-ops & Community Apartments. Stock cooperatives and community apartments are both forms of common interest developments governed by the Davis-Stirling Act. Civil Code § 5551(l) states that inspections of elevated wooden structures apply to multi-family structures with three or more units. This would seem to apply to stock co-ops and community apartment projects. However, the statute also seems to limit its requirements to condominium projects. (Civ. Code § 5551(b)(1)) If so, stock cooperatives and community apartments with elevated structures are not required to inspect their structures.
Recommendation. Because of the anomaly in the statute, stock cooperatives, and community apartment projects with multi-family structures with three or more units should get an opinion from legal counsel on how best to proceed. The safer course of action is to inspect and repair elevated structures. Doing so protects residents and minimizes potential litigation and judgments against the association.
Exterior Elevated Elements Defined
Required inspections apply to load-bearing components and associated waterproofing systems. "Load-bearing" means (i) 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, (ii) that have a walking surface more than six feet above ground level, (iii) that are designed for human occupancy or use, and (iv) are supported in whole or in substantial part by wood or wood-based products. (Civ. Code § 5551(a)(3))
Illustrations. On the right side of the screen are examples of different configurations of elevated structures needing inspection.
- Cantilevered wood balconies must be inspected.
- Balconies supported by wood posts require inspection.
- Balconies supported by the primary structure do not require inspection since they cannot collapse. Balcony railings, however, can give way and should be inspected and included in the association's reserve study.
- Balconies partly supported by the structure and partly cantilevered require inspection.
- Exterior stairs and landings attached to wood require inspection. (See information about Stair Inspections and Maintenance.)
- Elevated walkways supported by wood structures must be inspected.
- Juliette balconies are decorative and do not meet inspection requirements. However, they should be inspected if they are attached to wood and a person can lean against them.
- Balconies made entirely of concrete and steel do not require inspection.
- Balconies flush with the building.
NOTE: Elevated structures that do not require inspection under Civil Code § 5551 still require a diligent visual inspection for purposes of an association's 3-year cycle of inspections for their reserve study. This includes concrete balconies.
Balcony Railings
The balcony, walkway, and stair railings must also be inspected to see if they are attached to wood or wood products. Even if a balcony does not extend beyond the exterior walls, the railings could fail, causing severe injuries or death. If the railing load transfers to the deck, the deck should be inspected. See photos #3, #7, and #9 as examples where railings and decks should be inspected, even if the balconies do not fall under inspection requirements.
Picture #9. This picture is interesting because the balconies do not extend away from the building. Even though they are flush with the building, each is more than six feet above the one below it. Also, the railings are attached to wood products and could fail, causing someone to fall to their death. Arguably, they might not fall under the statute; even so, they should be inspected.
Out of Code Railings. If the railings no longer meet code, i.e., the spacing between bars exceeds 4 inches, and the railing height is less than 42 inches, the railings must be brought up to code whenever they are replaced. If the supporting wood is dry rotted, which requires replacement of the railings, they need to be brought up to code. If balconies do not require any repairs, the railings are normally grandfathered. Even so, an association's insurance carrier may require railings on elevated structures (balconies, decks, and walkways) and fences around pools to be brought up to code.
Waterproofing Systems
Water intrusion into balconies, decks, and other elevated structures is the primary cause of damage to the wood that supports them. It has led to the collapse of many structures around the nation, including the Berkeley balcony that killed six college students and seriously injured seven others. Water intrusion can quickly lead to dry rot and the loss of structural integrity. Without moisture, fungi cannot grow; thus, keeping all waterproofing systems well-maintained is important. That is why the Davis-Stirling Act requires thorough inspection of waterproofing components such as flashings, membranes, coatings, and sealants. (Civ. Code § 5551(a)(1))
Inspection Reports
Inspectors. Elevated structures must be inspected at least once every nine years by a licensed structural engineer, architect, or civil engineer. (Civ. Code § 5551(b)(1)) The inspector must inspect a sufficient number of units to provide 95 percent confidence that the results from the sample reflect the whole, with a margin of error of no greater than plus or minus 5 percent. (Civ. Code § 5551(a)(4)) The association's reserve study professional should be notified when the inspection occurs, as the results could affect the cost allocations for specific line items in the study.
Inspector's Report. The inspector must submit a report to the board of directors specifying the current physical condition and remaining useful life of the load-bearing components and associated waterproofing systems, and whether they are an immediate threat to the health and safety of residents. The report must also include recommendations for any necessary repairs. (Civ. Code § 5551(e)) The first page of the report must include the following information:
- Date of inspection
- Total number of units
- Total number of units with EEEs
- Total number of EEEs in the project
- Total number of EEEs inspected
- Total number of inspected EEEs that pose a safety threat and the number of affected units
- The inspector's certification
Inspection reports must be made available for two inspection cycles, i.e., eighteen (18) years. (Civ. Code § 5551(i)) The report must be made available for review by members and prospective purchasers, and beginning January 1, 2026, it was added to the list of association records subject to inspection by members. (Civ. Code § 5200(a)(15))
Immediate Threat to Safety. If the inspector finds that the exterior elevated element poses an immediate threat to the safety of the occupants, the inspector must submit the report to the board immediately and to the local code enforcement agency within 15 days of completion of the report. The association must take preventive measures immediately upon receiving the report, including preventing occupant access to the exterior elevated element until repairs have been inspected and approved by the local enforcement agency. (Civ. Code § 5551(g)) Local enforcement can force immediate repairs, even if it requires an emergency special assessment.
Concrete Balconies
Even though the elevated structure statute does not apply to concrete and steel balconies, they should still be inspected and included in an association's reserve study. This includes waterproofing and railings. Concrete is porous, and any water migrating into the structure can cause the reinforcing steel to rust. This causes the metal to expand, cracking the concrete and leading to spalling (concrete breaking off into fragments). Regular maintenance of the waterproofing can avoid expensive concrete repairs down the road.
Stair Inspections and Maintenance
Stairs also need to be inspected and repaired. Depending on the extent of the repair, associations may be required to bring the stairs into compliance with building codes.
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