Inspections Required. In addition to reserve study inspections every three years for maintenance and repairs, condominium associations with three or more units must conduct a structural inspection every nine years. The new inspection requirements do not change who is responsible to maintain, repair or replace balconies or other elevated structures. The statute imposes additional inspection and repair obligations on HOAs as to balconies and/or elevated structures which associations are already obligated to maintain, repair or replace.
Waterproofing Membranes. Waterproofing membranes will eventually become worn and damaged. Damage occurs naturally over time from sunlight during the summer and rains in the winter. Problem signs to look for include:
- bubbling of the deck surface,
- cracks in the membrane,
- soft spots in the deck that sag when stepped on,
- flashing that is pulling away from the wall,
- water that does not flow to the drains.
Premature Failure. In addition, owners can cause premature failure by moving heavy items across the surface, such as large plant-filled pots, sharp legs on chairs and tables, etc. Charcoal grills should also be prohibited--in addition to being fire hazards and creating nuisance smoke, any hot coals dropped onto the surface will burn through the waterproofing membrane. Decks should be kept clean since sand and grit, when walked on, will grind into the surface and damage the waterproofing.
Rules & Regulations. If owners are responsible for maintaining their own decks, guidelines need to be written into the association's rules to cover the following items:
- what to look for when inspecting the decks for damage,
- how to avoid damage to the waterproofing membrane,
- how often the deck should be resealed (waterproofing products such as Dexotex require recoating every 5 years--sooner if there is heavy usage or damage from patio furniture, etc.),
- the kinds of waterproofing systems that are acceptable to the association,
- prohibited deck systems, such as carpet and tile,
- deck drain maintenance, and
- deck to wall flashing maintenance.
Confusing Maintenance Duties. Association documents routinely assign maintenance duties between owners and the association. Unfortunately, exclusive use common areas are often left out or muddled. For example, in condominium developments, older CC&Rs are vague or silent when it comes to balcony.
Old Default Provision. To resolve the problem, the Davis-Stirling Act created a default provision that assigned exclusive use maintenance to owners. The Act did not define "maintenance" but everyone previously understood it to include repairs since most dictionaries define it as such.
New Default Provision. Starting January 1, 2017 a new default provision went into effect. Unless an association's CC&Rs state otherwise, owners continue to be responsible for maintaining their exclusive use areas but the association will be responsible for repairing and replacing them. (Civ. Code §4775(a)(3).)
Structural Elements. Unless the CC&Rs clearly state otherwise, the structural elements of balconies are the responsibility of the association to repair and replace, even when the balcony is described as part of a unit. This is because the ownership of a condominium balcony is generally described as airspace bounded by the interior planes of the balcony. Thus, the structure remains common areas which the association is obligated to repair and replace.
Recommendation: To avoid legal problems, associations should adopt maintenance guidelines and clearly define an owner's duties for the waterproofing portion of balconies. Those duties must harmonize with their CC&Rs. Each association will need to decide for itself whether it wants to maintain deck coatings or assign that task to owners--and if so, what does that mean? Associations should create maintenance charts with clearly defined duties. Those with existing charts will need to update them to include more detail. Some associations will need to amend their CC&Rs.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.