Adams Stirling PLC
  California's Leader in Community Association Law February 7, 2021

QUESTION: If our HOA has been diligent in the upkeep of our balconies and has proof of ongoing maintenance, must we pay for the invasive inspection? -Carolyn

ANSWER: Yes, you still need to perform the inspection. It's required by law. Even though you have done a good job maintaining your balconies, you could have an undetected source of moisture causing dryrot in the wood elements of your structures, not to mention termites. If the inspection reveals your balconies are all in good shape, you don't need to perform another invasive inspection for nine years. (Civ. Code §5551(b)(1).) All you need is a reasonably competent and diligent visual inspection of your elevated structures every three years by your reserve study provider. (Civ. Code §5550(a))

Dining. Our HOA is a housing development. Would this law be applicable to our country club which offers outdoor dining on a balcony? –Tomas H.

ANSWER: The statute does not apply to your clubhouse. It only applies to buildings containing three or more multifamily dwelling units. (Civ. Code §5551(i).)

However, if I were on your board, I would have the balcony inspected. It is subject to the same risks of deterioration and collapse as condominium balconies and may be at greater risk because of the heavy traffic it receives.

If it collapses and people are injured, you know you're going to be sued. It's best to avoid injuries and litigation by performing an invasive test followed by a written report. If the report gives you a clean bill of health, you have a defense against allegations of negligence in the event something happens.

Colonoscopy. "Colonoscopy." Was this word a typo? –Maureen C.

RESPONSE. Smile. No, it's not a typo. That's the word I meant to use.

Small Balconies. I have been a community manager for 40 years and never had a balcony at risk. Most the the examples you gave in your newsletter involved lots of people and a lot of weight. Realistically it’s hard for a balcony made for 2 to 4 people to not show indication of failure prior to failure. There should be a different category and less restrictive guidelines for small balconies. ‑Jim A.

ANSWER: You've been lucky not to experience problems. I can think of half a dozen associations we've worked with that suffered significant problems with elevated structures. I am sure there are many readers whose associations suffered costly problems with balconies.

The statute makes no distinction between large balconies and small ones. None of the balcony collapses I cited showed any indication of failure before they suddenly gave way. Even small balconies can be overloaded. For example, if there is a 4th of July fireworks display and 8 people crowd onto a balcony designed for 2 to watch the fireworks, they could experience more than they expected. The collapse in Berkeley involved a small balcony where 13 students crowded onto it during a birthday party. Six died and 7 were badly injured.

San Francisco Balconies. San Francisco has had MANY balcony collapses over the years. –Steve

RESPONSE: That's not all they've suffered from over the years.

Concrete Balconies. Every time this topic is raised, it must be emphasized that the inspection requirement is about balconies and elevated structures that are all or partially wood. Our two brand new directors almost resigned from shock after reading your newsletter. Our 300+ balconies are concrete and steel. –Carol R.

ANSWER: Even though the statute does not apply to your balconies, make sure you include waterproofing and railings in your reserve study.

Concrete is porous and any water migrating into the structure can cause the reinforcing steel to rust. This causes the metal to expand, which cracks the concrete and leads to spalling (concrete breaking off in fragments).

The picture on the right shows the ceiling in an association's parking structure. Regular maintenance of the waterproofing can avoid expensive concrete repairs down the road.

Visual Inspection. Surely a visual inspection could help identify those balconies that need a colonoscopy? –Paul Y.

ANSWER: Unless the structural elements are already exposed, a visual inspection of a balcony's exterior cannot tell an inspector what's happening inside the balcony any more than a doctor inspecting a patient's outside can see what's happening inside. That's what scopes, MRIs, CAT scans, x-rays, and surgeries are for. They allow doctors to inspect the insides of a body.

The statute requires an architect or structural engineer to perform a sufficient number of tests to provide 95 percent confidence that the results from the sample are reflective of the whole, with a margin of error of plus or minus 5 percent. (Civ. Code §5551(a)(4).)

Inspectors are allowed to use the least intrusive method necessary to examine load-bearing components, including visual observation in conjunction with moisture meters, borescopes, and infrared technology. (Civ. Code §5551(a)(5).) The statute also requires inspection of associated waterproofing systems, which includes flashings, membranes, coatings, and sealants that protect the load-bearing components from exposure to water. (Civ. Code §5551(a)(1).)

Balconies on Garages. The balconies in our condominium project are all directly above a garage. Are inspections required for balconies that do not extend out into space? –Linda L.

ANSWER: No, the balconies don't need invasive inspections, but their railings will need inspection if they are anchored to wood or wood products.

Excessive Watering. What if the owner causes damage? A neighbor waters his plants by flooding the entire balcony, siding and walkway below. He has done this on a weekly basis for years. Boards have sent him letters asking to stop. The excessive watering is eventually going to create dryrot in the wood making the balcony unsafe. Who is responsible for replacing the wood in a situation like this? -Sandy

ANSWER: Even though the owner is causing damage to the structure, the association will be responsible for repairing it. (Civ. Code §4775.) Fortunately, the board can impose a reimbursement special assessment on the owner to pay for the damage.
Your board will need to inspect the structural elements of his balcony sooner rather than later. To get him to stop his excessive watering, it may be time for hearings and fines, followed by a lawyer letter, followed by a demand for ADR, then a lawsuit, if he does not modify his behavior.

Not Cantilevered. If balconies are not cantilevered but rather are supported on three sides, do they still require inspection? –Tom M.

ANSWER: If they are supported by wood posts, they need to be inspected. We represented an association where all exterior stairwells, walkways and balconies were supported by wood posts. It created a nice rustic atmosphere. Unfortunately, they all suffered wood rot and a costly renovation project was required.

Landings. We have landings in our complex. Do they fall into this inspection category? Our landings have railings on either end, but run continuous across the second level at the top of concrete stairs. -Susan A.

ANSWER: If the landings and walkways are more than six feet above the ground and supported by wood or wood products (Civ. Code §5551(a)(3)) then, yes, the landings and railings need to be inspected.


Our third video looks at the earliest common interest developments in California. Many will be surprised to learn that some are over 100 years old.

This video reveals what triggered the explosion of condominium construction and the origin of the laws that govern homeowner associations in California. I think you will enjoy it.

  Watch Origins of the Davis-Stirling Act.

Next in our series will be "Fiduciary Duties of Boards of Directors."

Federal Update. The CDC updated its small gathering guidelines to address safer ways to enjoy the Super Bowl.

Statewide Update. Homeowners who are seniors, are blind or have a disability and have 40 percent equity in their home and have an annual income of $45,000 or less may qualify for property tax postponement. Last day to file for the postponement is February 10, 2021.

The CDPH issued a 2/5/21 Order Revoking the Hospital Surge Order. The Legislature extended the eviction moratorium. The following Counties have changed Tiers: Alpine (Red Tier to Orange);Trinity (Red Tier to Orange).

Northern California. Alameda County issued a 2/3/21 Press Release re: Mega Vaccination Site in Oakland, which will expand eligibility of vaccines to essential workers, seniors (65+) and high-risk individuals, in phase 1B.

Contra Costa County issued a 2/3/21 Press Release re: Vaccine Supply Shortages leading health officials to urge prioritization of those 65+. The County issued new School Guidance.

Lake County issued a 2/3/21 Press Release re: Limited Vaccination Scheduling for Those 65+.

Mendocino County issued a 1/30/21 Press Release re: Revised School Order. The County issued a 1/30/21 Revised School Order and 1/31/21 School Reopening Guidance.

Mono County issued a 1/31/21 Press Release re: County Alignment with Purple Tier Lodging Guidance. The County issued a 2/4/21 Press Release re: Vaccinating Phase 1B Tier 1 and Those 55+ with Underlying Medical Conditions.  Mammoth Lakes issued 1/31/21 Short-Term Rental Lodging Order for Purple Tier.

Monterey County issued a 2/5/21 Press Release re: Mass Vaccination Sites.

Napa County issued a 2/3/21 Press Release re: Vaccine Shortage and Prioritizing Those Healthcare Workers and Those 75+.

Placer County issued a 2/5/21 COVID-19 Update.

San Francisco issued a 2/4/21 Press Release re: High-Volume Vaccine Site.

San Joaquin County issued a 2/4/21 Press Release re: Vaccination Interest Form.

San Mateo County issued a 2/3/21 Press Release re: Vaccine Shortages and Prioritizing Those 75+ for Vaccines.

Santa Clara County issued a 2/3/21 Press Release re: Priority Vaccination for Those 65+. The County issued a 2/4/21 Press Release re: Providing Vaccine to Those 65+ Regardless of County of Care. The County issued a new Vaccine Dashboard. The County issued a 2/5/21 Press Release re: Largest Vaccination Site at Levi Stadium.

Santa Cruz County issued a 2/3/21 Press Release re: Prioritization of Those 75+ Due to Vaccine Shortage.

Shasta County issued a 2/5/21 Press Release re: Teacher Vaccinations Beginning Next Week.

Sonoma County issued a new Health Order dated 1/31/21. The County issued a 2/5/21 Press Release re: Vaccination of Those 70+ Beginning Monday

Tehama County issued a 2/2/21 Press Release re: Vaccination Updates.

Southern California. Los Angeles County is prohibiting the Super Bowl on televisions at restaurants, breweries and wineries. They updated definition of household for Campgrounds and RV Parks, to exclude institutional group living such as dormitories, fraternities, sororities, monasteries, convents, or residential care facilities. Also excludes commercial living arrangements such as boarding houses, hotels or motels.

Riverside County reminds residents to avoid gatherings during Super Bowl Sunday.

San Luis Obispo County urges residents to celebrate safely for Super Bowl Sunday.

San Bernardino County urges residents to use caution for Super Bowl Sunday and avoid behaviors that could lead to another spike in Covid-19 infections.

Ventura County is recommending restaurants, bars, distilleries, breweries and wineries to keep their television sets off in customer areas on Super Bowl Sunday to prevent large gatherings.

READING THE CHART. Because the chart is large and the text small, you can easily make it larger for viewing by holding down the "Ctrl" key on the left side of your keyboard and then using your finger to scroll forward or backwards with the wheel on your mouse. You will see the text grow larger or smaller as you move the wheel. For a list of county restrictions and links to health department orders, see County Chart 2-5-21. The chart is also posted on our website.

Boards can contact us for friendly,
professional advice.

Adrian J. Adams, Esq.
Founder & Managing Partner
DISCLAIMER. Our newsletter provides commentary based on sketchy information we receive from readers. From time to time, we add a little humor. Some find it amusing. Others are appalled. Some readers are excited when they score free legal advice. Not so. Our newsletter provides commentary only, not legal advice. You need to pay real money for an attorney to review all the facts and give you a legal opinion. We do that too. Keep in mind we are corporate counsel to California associations only. Request a proposal to represent your association. It's okay, we're friendly.

See our summary of new laws and cases.

I join Adrian in inviting you to contact us for your association's legal needs.

Hon. Lawrence W. Stirling, Senior Partner and author of the Davis-Stirling Act
Origin of DS Act
Conflicts of Interest
Reserve Borrowing

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