Will the Surfside Tragedy Lead to Changes in the California Balcony Law? The future of Civil Code §5551 and the practical concerns facing boards of directors. BY TYLER BERDING, ESQ., AND STEVEN WEIL, ESQ.
Much has been written about the Champlain Towers collapse in Surfside, Florida. We won’t speculate on what caused the collapse. We’re not structural engineers. We do understand how buildings are constructed and how community associations deal with the maintenance and repair of their projects in California and across the country. We also know the role that the laws of each state play in the decisions boards of directors must make. Like the balcony failure in Berkeley before it, the Champlain Towers incident will likely lead to some legislative action. California has already acted. California Civil Code §5551 (CC §5551), enacted in 2019, put in place what we believe is the first-ever requirement that structural components in condominium buildings be inspected for safety. But Surfside has raised questions as to the future of CC §5551 as do the practical issues encountered when complying with the existing statute. For example, CC §5551 applies only to wood frame buildings. Should it be expanded to include other types of condominium buildings or planned developments where an association has some responsibility for maintenance? The law only requires that “exterior elevated elements” be inspected. Should other structural components be included? Why isn’t the reserve study required by California Civil Code §5550 enough to protect the occupants of condominium buildings? What should directors expect when complying with CC §5551—inspector contracts, disclosures, and obtaining membership support for added expenses? What are the responsibilities and risks of a managing agent?
12 The Law Journal Winter 2021 | cacm.org
LIMITATIONS OF THE CALIFORNIA RESERVE STUDY STATUTE California Civil Code §5550 (a) states: “(a) At least once every three years, the board shall cause to be conducted a reasonably competent and diligent visual inspection of the accessible areas of the major components that the association is obligated to repair, replace, restore, or maintain as part of a study of the reserve account requirements of the common interest development.” There are two words in that statute that greatly limit its effectiveness, “visual” and “accessible.” It is impossible to adequately inspect critical structural components that are not visible or readily accessible. Joists and ledgers that support balconies, shear walls that limit earthquake damage, roof sheathing, and foundation supports are normally hidden behind other components in a building (e.g., soffits, siding, and roof coverings). Unless these covers are removed or opened for inspection, the condition and service life of the hidden components cannot be evaluated. The cause of the failed balcony in Berkeley was not visible. The same may very well be true of the internal structural components that failed in Florida. DOES CALIFORNIA CIVIL CODE §5551 CLOSE THE GAP? The California balcony inspection statute requires that certain structural supports, those carrying occupant “loads,” be inspected whether they are readily visible or not. The “load-bearing” components themselves, not just the surrounding construction, must be inspected in new condominium buildings within six years and every nine years after that. The inspector must report the condition of those components, and that condition and likely service-life must be considered in the CC §5550 reserve study. But there are limitations to CC §5551. First, it only applies to structures built primarily of wood. Second, it only applies to “exterior elevated
