By understanding key terms in California’s balcony laws (SB721 and SB326), owners and managers can avoid being misled by less informed service providers – or worse.
When California first passed SB721, and later SB326, there were more questions than answers:
- Who will enforce the new laws?
- How are the inspections supposed to be done?
- If there are problems found during an inspection, who are they reported to? If repairs were done recently, do they still need to be inspected?
- Can inspections be performed in phases to spread out the costs?
With all the challenges posed by COVID-19 these days, it is probably safe to assume that residential property owners have other things on their minds besides the inspection of balconies and other exterior elevated elements (EEEs). However, it is important to recognize that the clock is ticking, and the January 1, 2025 deadline for compliance with both SB721 and SB326 is only getting closer.
Despite the fact that few quarantined residents would be receptive to the idea of inspectors passing through their units in order to inspect their balconies, Xpera’s phones keep ringing with inquiries – partly due to misinformation being spread by other inspection firms.
I believe this primarily comes down to an inadvertent misreading of California’s EEE inspection laws, and in particular, the definition of certain key terms.
By having a better understanding of the following terms, you can avoid the guidance of poorly informed inspection providers. Better yet, you may prevent an injury or even save a life.
Here are some important terms you need to know:
- Exterior elevated elements
- Load-bearing components
- Visual inspection
- Sample Size
Exterior Elevated Elements (EEEs)
This term did not really take off until after the Berkeley balcony collapse, but since it is now the term used in the law, it is an important term to define. In SB721, the bill that applies to apartments, the law offered the following definition:
“Exterior elevated element” means the following types of structures, including their supports and railings: balconies, decks, porches, stairways, walkways, and entry structures that extend beyond exterior walls of the building and which have a walking surface that is elevated more than six feet above ground level, are designed for human occupancy or use, and rely in whole or in substantial part on wood or wood-based products for structural support or stability of the exterior elevated element.
In other words, an EEE is first and foremost a type of structure. For the purpose of this law, it must be wood-framed, extend beyond the building’s exterior wall, and is elevated at least six feet above the ground.
SB326, which applies to condominiums and other community associations, offers a much clunkier definition of EEE:
“Exterior elevated elements” mean the load-bearing components together with their associated waterproofing system.
This introduces another critical term, so let’s take a closer look at that.
SB721 defines load-bearing components as “those components that extend beyond the exterior walls of the building to deliver structural loads from the exterior elevated element to the building.” That is a lot more descriptive than the following definition from SB326:
“Load-bearing components” means 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, that have a walking surface elevated more than six feet above ground level, that are designed for human occupancy or use, and that are supported in whole or in substantial part by wood or wood-based products.
As you may notice, it is almost like the definitions got swapped going from SB721 to SB326. This seems to imply that load-bearing components are the elements that extend beyond the building’s exterior wall. Regardless, if you take the SB326 definition of an exterior elevated element and combine it with the definition of a load-bearing component, it is clear that we are talking about the same components with both laws.
The clear intent in both laws is the need for assessment and evaluation of the load-bearing components that provide structural support for exterior elevated elements. It is also clear from both laws that the load-bearing components are the wood structural elements.
Many exterior elements have a form of cladding such as stucco to cover the structural components and help give the building a certain look. Stucco is not a load-bearing component. Neither is wood siding. If you look at the underside of a balcony or other exterior elevated element and see stucco or siding, you are not able to easily see the actual load-bearing components.
The wood framing that is concealed from view by the stucco cladding or siding is the load-bearing component that must be visually inspected, according to both laws. Which brings us to the next term.
Even though this is a term that should be simple enough to understand without legal interpretation or expert opinion, this is a term that seems to be poorly understood in relation to the California balcony bills.
SB721 explains that the minimum requirements for inspection include:
Identification of each type of exterior elevated element that, if found to be defective, decayed, or deteriorated to the extent that it does not meet its load requirements, would, in the opinion of the inspector, constitute a threat to the health or safety of the occupants.
Assessment of the load-bearing components and associated waterproofing elements of the exterior elevated elements identified in paragraph (1) using methods allowing for evaluation of their performance by direct visual examination or comparable means of evaluating their performance.
According to SB326, visual inspection “means inspection through the least intrusive method necessary to inspect load-bearing components, including visual observation only or visual observation in conjunction with, for example, the use of moisture meters, borescopes, or infrared technology.”
Unfortunately, many professionals have misconstrued this language to mean that nothing more than a purely visual inspection is required to comply with the law, at least when it comes to SB326 compliance. One reason may be that some are still operating on the old standard for inspecting balconies. As discussed in my previous article, the Berkeley Balcony collapse changed that inspection standard. For some reason, SB721’s wording seems to come across more clearly, resulting in less confusion.
So, let us clear this up once and for all.
(1) When it comes to SB721 and SB326, an exterior elevated element is a balcony, deck, landing, walkway or other feature that:
a. Is wood-framed
b. Is at least six-feet above the ground
c. Extends past the building’s exterior wall (even if it is partially or completely covered)
(2) Load-bearing components are:
a. The structural wood framing elements that support an exterior elevated element
b. Not the stucco part
c. Not the siding part
d. Required to be inspected, even if concealed from view
(3) Visual inspection:
a. Is the least invasive or intrusive means necessary to allow the inspector to visually observe, for the purpose of assessment, the condition and remaining integrity of the load-bearing components
b.Requires actually observing the load-bearing components (if the load-bearing components are concealed from view by stucco or other cladding, it must be facilitated through other means, such as borescope or infrared imaging)
c. Is not looking solely at cladding materials without properly assessing the integrity of the load-bearing components
This is a whole can of worms in and of itself. Interestingly, this is also perhaps the biggest divergence between the law meant for apartments and the law meant for condos. In SB721, it simply states that “a sample of at least 15 percent of each type of exterior elevated element shall be inspected.” We will come back to the “each type” qualifier in just a bit, but first, let’s consider where that 15% figure comes from.
In SB326, the issue of sample size becomes downright elaborate:
“Statistically significant sample” means a sufficient number of units inspected to provide 95 percent confidence that the results from the sample are reflective of the whole, with a margin of error of no greater than plus or minus five percent.
The law goes on to explain that before the inspector even visits the site, “the inspector shall generate a random list of the locations of each type of exterior elevated element. The list shall include all exterior elevated elements for which the association has maintenance or repair responsibility. The list shall be provided to the association for future use.” The inspection must then follow the order of the randomly generated list precisely, and subsequent inspections (required every nine years for condos) must continue to follow that same pattern, until all units have been inspected.
The key thing to understanding here is that both laws use the phrase, “each type of exterior elevated element.”
To properly comply with the law, all EEEs need to be quantified, and then cataloged by type, before any attempt at sample size selection can be made.
What are the factors that can influence the determination of a type of EEE?
Here are some examples:
A south-facing balcony experiences different weather exposure than an east- or west-facing balcony.
In stacked balcony situations, the upper level balcony with no roof overhang experiences different weather exposure than the lowest balcony that is partially, or entirely, protected by the balcony immediately above.
If a project was built over multiple phases, there were likely different trade contractors working on various EEEs.
Different layouts and configurations result in multiple types of EEEs to be tabulated.
Therefore, just because a complex has a total of 500 balconies, that does not mean that they are all the same. Regardless of whether or not it is the 15% minimum required by SB721 or 95% confidence +/- 5% called for by SB326, the sample requirement is for each type of EEE.
I encourage you to read Ted Bumgardner’s article for much more information on this subject.
This term does not appear in either law, but it does not need to. Loosely defined, fiduciary duty is the legal obligation and ethical responsibility to act in the best interests of another party. For a property manager, apartment owner or association board member, their fiduciary duty is to comply with the applicable laws for the property or association under their responsibility and act in the best interest of their clients.
What makes it hard to comply with laws like SB721 and SB326 is that besides the difficulty in interpreting various terms and legalese, we now have service providers that are misinforming the people that carry the burden of that fiduciary responsibility with regard to exterior elevated elements.
In summary, all a competent and ethical decision maker can do is to educate themselves about the issues, seek out expert help where warranted, and try to make the best decision possible based on the available facts at hand. We hope this article has cleared up some of the misconceptions of critical terms and concepts. Of course, we are here to help if you need more.