Xpera Group Balcony Assurance

California Balcony & Deck Inspection FAQs

Questions and Answers about SB 721 - Balcony & Deck Inspection Law

With the passing and signing of Senate Bill 721 in 2018, there are a lot of questions pertaining to what this new inspection requirement means for rental property owners and managers. The law brings prominence a new term in the construction and real estate industry: Exterior Elevated Elements (EEE). Below are common questions we regularly get asked by apartment owners and property managers relating our Balcony & Deck inspection services.

List of Frequently Asked Questions


What are Exterior Elevated Elements?

An exterior elevated element is a structure (including supports and railings) that extend beyond a building's exterior walls, has a walking surface more than 6 feet above ground level, and is designed for human use. They include: balconies, decks, porches, stairways, walkways and entry structures.

In California Health & Safety Code §17973, which was created by SB 721, the code includes another phrase to the definition: the element relies on wood or wood-based products for structural support. The common and California law's definitions of Exterior Elevated Elements was based on what City of Berkeley's defined in their E3 Inspection Program that was passed by Urgency Ordinance in 2015. Berkeley's E3 definition states that they "are all elevated decks, balconies, landings, stairway systems, walkways, guardrails, handrails, or any parts that are exposed to weather and with a walking surface more than 6 feet above grade/ground."

One of the main differences between the two definitions is that the California law focuses on structures made from wood, whereas Berkeley's includes both wood-framed and steel-framed elements.


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Why do we need to do inspections on exterior elevated elements?

In our first conversations with property owners and managers, the question of "WHY" is almost always asked. The answer comes down to improving safety.

With the development of building codes and laws the past century, building safety has become ubiquitous in the United States. Most of the public assume that buildings are safe. That assumption today is hardly challenged unless there are very clear signs that part of the building is in decay or disrepair.

However, there are parts of a building that regularly continue to have documented failures that cause injury to occupants: balconies, decks, porches, and stairs. According to the statistics compiled by Consumer Product Safety Commission, structures such as balconies and decks failures have caused thousands of injuries per year that lead to emergency room visits. 

In California, the event that made this reoccurring issue too big to ignore was the Berkeley Balcony Collapse in 2015. The tragedy that led to six deaths and seven injuries prompted action by the city and state. The forensic investigations into the causes revealed the inherent risks of wood-framed cantilevered balconies, which apply to other similar raised load-bearing structures.

In 2016, the state passed a law which directed the California Building Standards Commission (CBSC) to perform a study and give a report on findings and recommendations. The CBSC Exterior Elevated Elements subcommittee's report determined among other things that there should be periodic post-occupancy inspections to prevent failures of existing EEEs.

SB 721 is the legislation to require those inspections in order to prevent future collapses on existing buildings. 


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Which Buildings Are Affected by SB 721?

The law states that all buildings in California that has three or more multifamily dwelling units are required to have their exterior elevated elements inspected. This means any triplexes, quad- or fourplexes, and larger apartment buildings (including mixed-use properties) are affected.

Flowchart on buildings that are required by California SB 721 to inspect Exterior Elevated Elements

(click image to see full size)

Buildings and complexes that are classified as Common Interest Developments are excluded from this law. You can read more which buildings are classified as common interest developments under California Civil Code §4100.


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Do California Condos need Balcony Inspections?

SB 721 exempts established condominiums and other Common Interest Development (Civil Code §4100) from the inspection requirements, however local jurisdictions may establish their own, more stringent requirements. The only exception is when an apartment building is being converted into condos - the EEE inspections need to be performed before the first close of escrow of a condo unit.

Condominium Home Owner's Associations (HOA) may decide on their own whether this kind of inspection is needed for proactive risk management. Depending on the HOA, decks and balconies could fall under their responsibilities for maintenance or on the individual owners themselves. 


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Who can perform EEE Inspections?

There are four professions that can perform the Exterior Elevated Element inspections:

  • Licensed Architect
  • Licensed Civil or Structural Engineer
  • Licensed Contractor (A, B, or C-5) with at least 5 years experience constructing multistory wood frame buildings
  • Certified Building Inspector*

*The property's local jurisdiction (city, county, etc.) determines the certifications that satisfy this requirement. One example of a qualified certification would be an ICC Certified California Residential Building Inspector. 


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What needs to be inspected?

California code requires that the EEE inspection needs to identify each type of Exterior Elevated Element. After they are identified, the minimum inspection includes:

  • Condition of load-bearing components
  • Condition of associated waterproofing elements
  • Evaluation of expected future performance and projected service life

What are associated waterproofing elements on the EEE?

The associated waterproofing elements are the components installed during construction in order to protect the structural supports from being exposed to water and other elements. On a balcony, this would typically includes flashings on the edges, a membrane or coating on the deck surface, and sealants at corners and other places where water can seep into.

Do steel elevated structures need inspection?

SB 721 states that any elements supported structurally rely on wood or wood-based materials require inspection. By that definition, steel structures do not need to be inspected by the California law. Local jurisdictions may be more strict however.

For example, if your property is in the city of Berkeley, the Berkeley Housing Code Section 601.4 include both "elevated wood and metal decks" requiring inspection. You can read more info on the City of Berkeley's E3 Inspection Program page. Other jurisdictions will likely have similar webpages if they have other requirements.

What percentage of EEE requires inspection?

In the initial draft of SB 721 it included all exterior elements however it was amended by the time it got signed into law. The minimum inspection requirement in Health and Safety Code §17973 is a sample of 15 percent of each type of exterior element.

The code doesn't define on what makes each EEE a different type from one another (aside from being a balcony, stairs, etc.). Some jurisdictions may clarify this or may leave it up to the inspector. To be on the safe side of complying with SB 721, owners should treat each configuration as a different type.

For example, if the building has two stairways, four balconies that are 8'x6' and six balconies that are 16'x6', it would be counted as three types of exterior elevated elements instead of two. In this example, the minimum inspection would be three places total (one stairway, one 8x6 balcony, one 16x6 balcony). 


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When does an apartment building need to be Inspected to comply with SB 721?

The law requires that inspections are to be done on a regular interval. Below are the timelines for both existing buildings and for buildings that are newly constructed:

Existing Apartment Buildings

  • The first inspection of Exterior Elevated Elements needs to be completed by January 1, 2025
  • Subsequent inspections need to be completed by January 1st every six years thereafter (2031, 2037, etc.)

Newly Constructed buildings

  • For any new building that had a building permit application submitted after January 1, 2019, the first inspection deadline for newly constructed apartments is within six years of getting issued a Certificate of Occupancy from the city/county
  • Subsequent inspections have the same cycle as existing buildings

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Are there penalties for not doing EEE inspections?

Senate Bill 721 doesn't list specific monetary penalties or enforcement procedures on owners who don't comply with inspections before the deadline. This means the local jurisdictions (city, county) in California have the freedom to set their own civil penalty guidelines and procedures for multifamily properties that do not comply with having their EEE's inspected.

The law does state that local enforcement agencies have the ability to recover enforcement costs.


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How long do inspections of exterior balconies, decks, and stairs take?

The time it takes to evaluate each exterior element depends on a number of factors, the total time inspecting a building will vary. In our experience performing inspections, access to each element tends to be the factor that adds the most time to the inspection. This includes:

  • Whether the structural components are exposed or covered by finishes such as a soffit
  • How high the EEE is from the ground or walkable surface below
  • Whether the inspector needs to enter dwelling units to perform inspections
  • If the balcony / deck is free of obstructions such as patio furniture

In ideal conditions, the consultant could perform the inspection of an exterior elevated element in minutes. In some cases, inspections will need to use lift equipment and/or remove material, which will add time and cost. 


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How much time does the apartment owner have for EEE Repairs?

There are three scenarios that can occur when the inspector finishes the inspection and hands the report to the building owner (or property manager acting as owner's agent):

  1. The inspector finds that no repairs are needed and everything is in working order
  2. There are elements identified that require corrective repairs but does not have immediate safety concerns
  3. There are elements identified that the inspector believes poses an immediate threat to safety of occupants or finds that emergency repairs (including shoring) is necessary

In scenario two, the building owner needs to apply for the repair permits within 120 days (~4 months) after they receive the inspection report. When the permit is approved, they have 120 days to complete the work. The city or county building department can grant extensions.

In scenario three, SB 721 requires the inspector to send a copy of the inspection report to the property's local enforcement agency in 15 days. From there, it is likely the agency will declare the building(s) that have the major EEE issues to be substandard building and then send the owner notice to abate the safety problems, which will include the time frames.

The building owner who encounters scenario three may also have non-critical repairs needed on other balconies, decks, stairs and such; those will follow scenario two's timeline (120 days to permit, 120 days to repair).

 

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Can the EEE Inspector also do the Repairs?

The way SB 721 is written, no licensed contractor who is serving as the inspector can perform the needed repairs or element replacements.

The reason the code has this provision (§17973 subdivision (g)) is to try to keep the EEE inspector an objective third party. Otherwise it allows situations where contractors have a financial incentive to increase the scope of repairs, that is adding repair work that wasn't needed in the first place. 


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What penalties does an apartment owner get for not doing repairs?

When the inspector gives the final report that says there are EEEs that need corrective repairs, the owner is responsible for performing the repairs. If the owner doesn't begin the repair process in 180 days, the inspector is required by §17973 to notify the city/counties building code enforcement agency and the building owner.

That notice puts the owner on a 30-day timeline to complete the repairs. If the local enforcement agency doesn't grant an extension, after 30 days the owner gets a civil penalty between $100-$500 per day until repairs are complete. This penalty can be in the form of a building safety lien on the property.


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Are there any record keeping requirements?

The owner needs to keep copies of at least two inspection cycles worth of inspection reports in their permanent records. It is also required for the owner to disclose and deliver the reports to the buyer at the time sale of building. If the building hasn't undergone a EEE inspection yet (since the first deadline is 2025), sellers of California apartments should disclose to buyers that the building hasn't had EEE Inspections so they can avoid the risk of failure-to-disclose claims.

There's two other related statements in §17973 the owner should be aware of: one is "subsequent inspection reports shall incorporate copies of prior inspection reports, including locations of exterior elevated elements inspected." The second is the law allows local enforcement to determine if the report should be submitted to them.

 


Have more Questions on california balcony and deck inspections?

The above isn't an exhaustive list of questions we have been asked by clients. If you need to know anything specific to your building's situation, give us a call.

 

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