Though we live in a world that dreams of ending
That always seems about to give in
Something that will not acknowledge conclusion
Insists that we forever beginAoife Beary
With less than 3 years before the deadline of January 1, 2025, apartment owners and condominium owners alike need to have a plan in place for following SB721 (California Health & Safety Code §17973) or SB326 (California Civil Code §5551). Mandating the inspection of not just balconies, but also certain elevated walkways, landings and stairs, these laws are somewhat complex, and there is no “One Size Fits All” approach that can be applied to any and all properties. Each property will have its own unique Path to Compliance, so before you start asking for quotes to have inspections performed, you’ll want to arm yourself with some key basic pieces of information.
Recently a story popped up in the news that may have escaped the radar of many people, considering the sheer volume of consequential world and local news we are increasingly bombarded with in today’s world. An Irish woman named Aoife Beary passed away at the young age of 27. Her official cause of death was reportedly a stroke suffered on New Years Day, but the stroke itself came from injuries inflicted by the terrible tragedy that took place over six years before on June 16, 2015.
You see, Ms. Beary was the latest victim of the collapse of a balcony at an apartment in Berkeley. In fact, it was her 21st birthday the victims were celebrating that evening when the decayed wood framing failed, causing the structure to partially collapse, sending the occupants to the ground below.
But that terrible event wasn’t the end of Ms. Beary’s life, nor her legacy. Speaking before the California state legislature under oath, she campaigned for more stringent building standards that ultimately led to enhanced building codes and several new laws. Then she went on to study occupational therapy at Oxford in London, having according to her family “insisted on living life well” on behalf of her friends that didn’t survive the tragedy, refusing to be defined by it.
The Path to Compliance
The two most important laws following the events in Berkeley are SB721 and SB326. The first applies to apartments with 3 or more attached units, and the second applies to condominiums with 3 or more attached units.
Both SB721 and SB326 have the same rapidly approaching deadline of January 1, 2025 that will have multifamily property owners, managers and stakeholders scrambling to comply. So, what does the Path to Compliance look like?
Just as every property is constructed uniquely, with rarely the exact same project team involved in the design and construction of numerous projects, so too each property will have its own unique Path to Compliance with the applicable EEE inspection laws. Besides SB721 and SB326, there are also local laws and codes that may apply.
Step 1: Survey
The first step in the Path to Compliance for any property with regards to EEE evaluations is to first define what is required for compliance at that specific property. That starts by answering some critical foundational questions:
- What features at a given property meet the definition of an “Exterior Elevated Element” in the applicable law? How many of each type are there?
- If not all EEEs are going to be evaluated during the first round of inspections, what is the minimum number of each type that need to be randomly inspected?
- If the wood framing at a certain type of EEE is concealed from view by stucco, siding, wood paneling or some other cladding material, what are the options for visually inspecting the load-bearing components as required?
Similarly, the Owner will have to answer some important questions as well:
- Will completing the bare minimum requirements for the inspection process yield sufficient data to satisfy the Owner’s own tolerance for risk? Or should 100% evaluation of all EEEs take place, for example?
- If the inspections reveal evidence of water intrusion or other issues requiring repair, will the Owner expand the scope of inspection to 100% of all EEEs?
- Although there is an additional cost to install vent accessories during the inspection process, will the longterm benefits and reduced future inspection costs justify the value of that work?
Armed with this basic, yet essential information, stakeholders can begin the process of planning out the inspection program.
Many property owners and managers understandably seek out multiple bids to complete inspections at a particular property. Unfortunately, most start the RFP process before having a clear understanding of the minimum compliance requirements for a given property, leading to proposals that oftentimes are inadequate.
The obligation to comply with the EEE inspection laws falls solely on Owners of the subject property, not the inspection firm. If an inspector fails to meet the rigor required by the law, the Owner will still have the burden of compliance.
The benefit of conducting the Survey before soliciting inspection bids is a clearly defined scope of work for the qualified inspection firms to bid on. That way stakeholders can evaluate the merit of the individual inspection firms and their respective fees, and can make a more objective “apples to apples” comparison.
Step 2: Screening
With a clear scope defined for the inspection, or screening process, the goal is to complete the on-site evaluations as efficiently as possible, while minimizing the impact and disruption on occupants to the extent possible. That’s easier said than done, to be sure.
One of the biggest challenges we face when evaluating EEEs is in fact the reason the laws mandating inspection exist in the first place: The critical load-bearing components that need to be visually inspected are often concealed from view. (We covered that topic in more depth: What You Don’t See Is What You Should Worry About)
So how does one visually inspect wood framing members that are covered by various layers of waterproofing and stucco, siding or some other cladding material?
The conventional method we used back during the peak of construction defect litigation 20-some years ago was destructive testing, or “DT” as it is typically known. The keyword being Destructive! It is a noisy and messy process. You have to be willing to pay a premium for a top quality crew that can restore the finished surfaces to a level that is imperceptible to even a trained eye.
Another, less extreme option, is the use of a borescope. This is a sophisticated device that involves a very small camera with built-in LED lighting that is on a semi-rigid cable that can allow a user to guide the camera through small spaces. We use these all the time as part of our diagnostic process because it allows us to quickly determine if there is evidence of water intrusion or other distress within the cavities beneath wood-framed EEEs, and in other concealed spaces such as in stucco guardrails.
To use a borescope effectively though, you have to still find a cavity for the camera to access. One option is to use a drill to create a small strategically placed hole. Using industry standard hole plugs, such as the ones the pest control industry has used for decades, prevents water, air and pest intrusion following the inspection.
Another option is to install operable/removable soffit vents, or other similar durable accessories, as part of the inspection process. This option is obviously more costly than simply drilling holes, but presents a far superior aesthetic than using hole plugs. There are other advantages as well.
One of the biggest challenges impacting the ability to conduct EEE inspections efficiently the past few years has been COVID-19. When so many people are confined to their home because of a highly infectious pandemic, the last thing one wants is to have a stranger come through that home just to inspect a balcony as part of some law. Besides making sure all our inspectors are vaccinated and following proper protocol, we have developed very efficient processes for collecting the information we need in as short a time as possible.
Step 3: Analysis & Reporting
After collecting extensive data from the inspection process, the information needs to be analyzed and compiled so that a report meeting the requirements of the applicable law is produced. Without going into all the detail about how the “sausage is made,” so to speak, our own proprietary process is informed from decades of experience in high stakes claims as forensic consultants. That background helps, because in the broadest of terms, our job is to take extremely complex and usually highly technical issues, and make them simple enough to understand that people can then form their own opinions — and hopefully reach a reasonable conclusion.
The biggest consideration that stakeholders involved in either the apartment segment of the market, or with community associations, need to keep in mind is future obligations that may be triggered as a result of the report that is produced following the inspections.
It should not be a surprise that if during the course of investigating EEEs at a property, if potential threats to the life-safety of occupants are identified, immediate action must take place. That language exists in both SB721 and SB326. The immediate action in both laws includes restricting access to the at-risk EEE, putting in temporary shoring or taking other emergency temporary measures to prevent collapse, and then perhaps most notably, informing the local building department or other relevant enforcement body of the issues.
What about non-emergency issues discovered during the evaluation process?
- In the case of apartments, owners are obligated by California Health & Safety Code §17973 to obtain repair permits within 120 days of receiving a report recommending any repairs, and then must complete those repairs within a further 120 days.
- For community associations (HOAs), there is nothing specific in California Civil Code §5551 mandating repairs take place within a certain time period, but presumably the same fiduciary requirements that board members face upon election would apply. In other words, there would have to be a very good reason to put off making any necessary repairs called out in such a report.
What’s the Point?
Putting off the inspections until 2024 is going to limit your options the longer you wait.
Already labor shortages and a mercilessly beaten supply chain are wreaking havoc on the construction industry. The type of plywood needed to rebuild a wood-framed deck that meets current building code requirements is incredibly costly as a result.
Another consideration is the cost of letting deferred maintenance continue to unabated. The easiest analogy of this that I offer to clients is as follows:
- If during an inspection we find some missing caulking or a gap in some waterproofing material, the cost to fix that is going to at most be in the $XXX range, per location.
- If we find that water is getting into the system and the waterproofing system has been compromised, the cost is going to be in the $X,XXX range, per location.
- But if the water intrusion has been going on for some time and now the wood-framed load-bearing components themselves are compromised, the cost is easily going to be in the $XX,XXX range, per location.
Working with Multiple Properties
Are you lucky enough to work with multiple apartment assets or community associations in the state of California? Congratulations, and welcome to the world of EEE compliance, because from here on out, you too will be dealing with this in some form, with properties being inspected and re-inspected almost on an ongoing basis.
As with a single property, before you start soliciting inspection bids, you will want to know what is required by the applicable law (or laws, depending on where the property is located) for each property. Remember: There are no “One Size Fits All” solutions to EEE compliance. In a perfect world (where there isn’t less than 3 years to complete all inspections), we would recommend sequencing inspections with other scheduled/planned maintenance and capital improvements. That is really probably not very realistic at this late stage in the game.
When working with a portfolio, EEE compliance right now is all about speed: quickly identifying the requirements at each given property. Confirm the locations to be inspected and schedule the inspections in a tight schedule. Collect and process the information quickly so as to identify action items such as additional inspections or repairs. As repairs are completed, quickly close out open issues to finalize the report.
After the first couple, your staff will be up to speed and the process will go much smoother. And just think, once we get the second round of inspections, either 6 or 9 years down the road, how much easier the whole program will be! It will become just another routine part of the job.
How to Begin the SB721 or SB326 Compliance Process?
It feels cliche almost at this point to explain, but both SB326 and SB721 generate more questions than answers. Stakeholders faced with compliance with the various EEE inspection laws will be forced to make decisions that could carry significant consequences, not to mention to significant costs that may result. As we have always said, experience is the best solution for complex issues in the building industry.
Therefore, to make the best informed decisions when it comes to the challenges associated with SB721 or SB326 (or any type of mandated Exterior Elevated Element inspection) compliance, partner with a firm that has the experience necessary.
While we can’t possibly imagine every question that will come up as people try to wrap their minds around the EEE inspection laws, we answer quite a few of the most common ones in our SB721 and SB326 Frequently Asked Questions page. Or, just drop us a line so we can get started answering your specific questions.
But, hurry. The clock is ticking. January 1, 2025 isn’t that far off…