Questions and Answers about SB 721 and SB 326 – California’s Balcony & Deck Inspection Laws
With the passing and signing of Senate Bill 721 in 2018 and Senate Bill 326 in 2019, there are a lot of questions pertaining to what this new inspection requirement means for rental property owners managers and condo homeowners associations. The laws bring prominence to a new term in the construction and real estate industry: Exterior Elevated Elements (EEE). Below are common questions we regularly get asked by apartment/condo owners and property managers relating to our Balcony & Deck inspection services.
List Of Frequently Asked Questions
- What are Exterior Elevated Elements?
- Why do we need to do inspections of exterior elevated elements?
- Which buildings are affected by SB 721?
- Which buildings are affected by SB 326?
- Who can perform EEE inspections?
- What needs to be inspected?
- When does an apartment building need to be inspected to comply with SB 721?
- When does a Condo Association need to Inspect EEEs to comply with SB 326??
- Are there penalties for not doing EEE inspections?
- How long do inspections of exterior balconies, decks, and stairs take?
- How much time does the apartment owner have for EEE repairs?
- Can the EEE Inspector also do the repairs?
- What penalties does an apartment owner get for not doing EEE inspections or repairs on time?
- Are there any record keeping requirements?
What Are Exterior Elevated Elements?
An Exterior Elevated Element (EEE) is a structural element of a building (including supports, associated waterproofing systems, and railings) that has the following properties:
- It extends beyond a building’s exterior walls
- It is designed for human use
- Has a walking surface more than 6 feet above ground level
- Has load-bearing components made with wood or wood-based products
They include balconies, decks, porches, stairways, walkways, and entry structures.
Where The Definition Came From
The California law definitions of Exterior Elevated Elements were based on the City of Berkeley’s definition 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.”
California’s Health & Safety Code §17973, which was created by SB 721, refined the definition of EEEs with the additional property: the element relies on wood or wood-based products for structural support.
SB 326 has also defined EEEs but in a different way:
CA Civil Code §5551(a)(2) “Exterior Elevated Elements mean the load-bearing components together with their associated waterproofing system.”
It sounds more vague and confusing until you read §5551(a)(1) and §5551(a)(3) which unpacks the nested definitions:
- “Associated waterproofing systems” include flashings, membranes, coatings, and sealants that protect the load-bearing components of exterior elevated elements from exposure to water.
- “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.
In short, SB 326 definition expands on SB 721’s definition to include “associated waterproofing systems.”
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 in the past century, building safety has become ubiquitous in the United States. Most of the public assumes 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 (recorded by 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 that 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 (2018) and SB 326 (2019) is the resulting legislation to require those inspections in order to prevent future collapses occurring on existing buildings.
Which Buildings Are Affected By SB 721?
The law states that all buildings in California that have 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.
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Buildings and complexes that are classified as Common Interest Developments are excluded from this law but are covered in SB 326. You can read more about which buildings are classified as common interest developments under California Civil Code §4100.
Which Buildings Are Affected By SB 326?
SB 326 makes it that condominiums and other Common Interest Developments are required to have EEE inspections.
The only time when condos are subjected to SB 721 is when an apartment building is going condo conversions – those inspections need to be performed before the first close of escrow of a condo unit.
Who Can Perform EEE Inspections?
SB 721 (Apartments)
There are four professions that can perform SB 721 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.
SB 326 (Condos)
SB 326 is more stringent, there are only two professions who can perform Exterior Elevated Element inspections for condos:
- Licensed Architect
- Licensed Structural Engineer
The reason why contractors/certified inspectors aren’t included in SB 326 is that the inspector is required to stamp the inspection report (meaning they are taking legal responsibility as a licensed professional that the report is correct as possible according to the relevant codes).
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 include 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?
Both laws state that elements that structurally rely on wood or wood-based materials require inspection. By that definition, steel structures do not need to be inspected by California law. Local jurisdictions may be more strict, however. Below are some of the most notable ones:
If your property is in the city of Berkeley, the Berkeley Housing Code Section 601.4 includes 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 web pages if they have other requirements.
If your property is in the city of San Francisco, the San Francisco Housing Code Section 604 requires an affidavit signed by a licensed inspector (general contractor, structural pest control, architect, engineer) who inspected all of the following list of “weather exposed areas” of apartment buildings and hotels. The affidavit needs to be submitted to the Department of Building Inspection every 5 years. The list of areas includes both wood and metal exterior elements. You can see a table comparing SFHC 604 and SB 721 in our article, A Tale of Two Balcony Inspection Laws.
What Percentage Of EEE Requires Inspection?
SB 721 (Apartments)
The initial draft of SB 721 first said all exterior elements however it was amended before it became 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 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 safer to categorize as three types of exterior elevated elements instead of two. In this example, the minimum inspection would be three places total (one stairway, one 8×6 balcony, one 16×6 balcony).
SB 326 (Condos)
Instead of a set percentage the SB 326 requires a random statistically significant sample (95% confidence, ±5% error margin) of exterior elements for which the association has maintenance or repair responsibility.
For those not well versed in statistics, this means for smaller complexes and buildings nearly all EEEs will need to be inspected while larger associations a substantial percentage will still be looked at. You can read about the likely reasons why condo inspections are more comprehensive in our recent article about SB 326.
When Does An Apartment Building Need To Be Inspected To Comply With SB 721?
The law requires that inspections are to be performed at regular intervals. 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
When Does A Condo Association Need To Inspect EEEs To Comply With SB 326?
Like its sister law, inspections are to be performed at regular intervals. Below are the timelines for both existing associations and for condo buildings that are newly built:
- The first inspection of Exterior Elevated Elements needs to be completed by January 1, 2025
- Subsequent inspections need to be completed once every nine years in coordination with the reserve study inspection.
New Condo Associations
- For any new building that had a building permit application submitted after January 1, 2020, the first inspection deadline for newly constructed condos is within six years of getting issued a Certificate of Occupancy
- Subsequent inspections have the same cycle as existing buildings (once every 9 years)
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.
SB 326 does not list any penalties, however, due to the fact the inspection report gets incorporated into the reserve study, it will likely fall under similar penalties for not following the Davis-Stirling act.
Both SB 721 and SB 326 have written that local enforcement agencies have the ability to recover enforcement costs.
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.
How Much Time Does The Manager Or HOA 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 HOA (or property manager acting as owner’s agent):
- The inspector finds that no repairs are needed and everything is in working order
- There are elements identified that require corrective repairs but does not have immediate safety concerns
- 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
SB 721 (Apartments)
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 and then send the owner notice to abate the safety problems, which will include the time frames.
SB 326 (Condos)
In the case of scenario two (non-critical repairs needed), the association does not have a timeline to apply for permit repairs. The HOA has full control of the timeline to conduct repairs. Since the inspection report is incorporated into the reserve study, the repair costs will be included which will be reflected in the HOA fees.
In the case that an emergency repair is needed (scenario three), SB 326 also requires the inspector to send a copy of the inspection report to the property’s local enforcement agency in 15 days. The association has to take preventative steps immediately to prevent access to the affected EEEs until repairs are performed, inspected, and approved by the enforcement agency.
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.
SB 326 doesn’t have any restrictions since licensed contractors aren’t listed as a profession that can provide EEE inspections to condos (only licensed architects or structural engineers).
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 (SB 721) 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.
SB 326 does not include penalties for not doing repairs.
Are There Any Record Keeping Requirements?
For SB 721, 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 the 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 are 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.
For SB 326, the EEE inspection report is stamped by the professional and it gets incorporated into the HOA’s Reserve Study.
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, call 888.298.5162 or submit an inquiry.
This article was originally published by Xpera Group which is now part of The Vertex Companies, Inc.