“Elevated Elements” Must Be Inspected Under New Law

“Elevated Elements” Must Be Inspected Under New Law

A balcony collapsed in Berkeley in 2015, causing six deaths and injuring seven. Consequently, Senate Bill (“SB”) 721 passed in 2018 and took effect in 2019, creating Health and Safety Code 17973. This law now requires inspection of elevated balconies, stairways, walkways, and other “exterior elevated elements” every six years. The new law exempts Davis-Stirling Act associations but applies to non-residential common interest developments. SB 326, introduced and passed this year, addresses Davis-Stirling Act common interest developments by adding a new Civil Code Section 5551 to take effect on January 1, 2020. HOAs must hire a licensed structural engineer or architect to perform a reasonably diligent visual inspection on a sample of exterior elevated elements. The first inspection must be completed by 2025 and repeated every nine years afterward. It applies to balconies, walkways, and other above-ground elements attached to the buildings which are at least six feet above ground level and which the HOA are responsible for maintenance or repair. The law applies to multi-unit buildings consisting of at least 3 or more units and so would not apply to condominium projects consisting solely of detached single or duplex structures. The inspection is “visual,” meaning the inspector will not be required to dismantle the exterior elevated elements, but the inspector is required to generate a random list of locations to inspect prior to beginning. The inspector must generate a written report, and if the report indicates immediate threat to safety, the inspector must provide the report to the HOA immediately upon completion and to the building and safety department within 15 days. The HOA is then required to...
Bills That Made It in Sacramento and Some Which Didn’t

Bills That Made It in Sacramento and Some Which Didn’t

September 30 was the last day for the Governor to sign or veto bills passed by the Legislature in 2018. Many bills affecting HOAs were signed, and two were vetoed. SB 261 This bill, signed by the Governor on September 27, amends Civil Code 4040 to allow homeowners to use email to request the HOA send communications via email to the homeowner, and amends Civil 4360 to require 28 days (instead of the current 30) notice to homeowners for proposed rule changes. SB 721 HOAs exempted. SB 721 requires multilevel residential properties to conduct inspections of balconies and other elevated elements every six years. Signed into law by the Governor on September 17, the final version of the bill exempts HOAs from its requirements. SB 1016 Time of Usage (“TOU”) Meters. SB 1016, signed by the Governor on September 13, adds a new Section 4745.1 to the Civil Code, protecting the installation of TOU meters for electric vehicle charging stations. HOAs may impose reasonable requirements on the requesting owner. AB 2912 New Association Financial Requirements. AB 2912 requires boards to review the HOA financials monthly instead of the current quarterly requirement. The new law, approved by the Governor on September 14, requires all HOAs to have fidelity (dishonesty) insurance in place. It also requires documentation of board authority for expenditures over $10,000 or 5% of the HOA’s budget, whichever is lower. SB 1128 and 1265 Vetoed. Two of the most troubling bills for California HOAs this year were Senate Bills 1128 and 1265. SB 1265 would have made it much harder for common interest development associations to preserve elections...
More Bills of Interest to Help (or Harm?) HOAs in 2018

More Bills of Interest to Help (or Harm?) HOAs in 2018

Last week’s column discussed SB 1265, a terrible bill for HOAs. There are several other bills which, if passed, would make major and minor changes to HOAs in 2019, and they are a mixed bag. SB 1016 Senate Bill (“SB”)1016, authored by Senator Allen, would add Civil Code 4745.1 to the current 4745 (regarding electric vehicle charging stations). Civil 4745.1 would require associations to cooperate with owners who wish to install “time of use” (“TOU”) meters on their electric vehicle charging stations. So long as members meet the requirements, encouraging electric vehicles is a good thing, and SB 1016 helps that good thing in HOAs. SB 1016 was approved by the Senate, and is pending in the Assembly. SB 1128 SB 1128, authored by Senator Roth from Northern Riverside County, would reduce wasted motion in HOA elections. If passed, this bill would create Civil Code 5100(g), which would allow an association to declare candidates elected by acclamation if, after the period for nominations has closed, there are no more candidates than openings on the board. The bill would also allow homeowners to elect to notify the HOA via email (instead of a “hard” copy) that the homeowner wishes to receive notifications via email rather than postal mail. The bill passed the Senate Transportation and Housing Committee and is awaiting hearing by the Senate Judiciary Committee. The bill is practical, a quality sorely needed in the HOA governance world. SB 721 Senate Bill 721 is a major bill applying to both apartment and condominium buildings. SB 721 arises from the 2015 tragedy in Berkeley in which 6 persons died and...
Playgrounds: Exercise or Peril?

Playgrounds: Exercise or Peril?

A lawsuit concluded in Las Vegas involving the Lamplight Village Homeowners Association in February 2018. A 15 year old boy in 2013 sat on a swing to send a text message. The crossbar of the swing set, had, unbeknown to him, corroded and worn badly at the connection points. After he sat down, the crossbar weighing 42 pounds fell on his head, causing serious injury. The jury was told that over recent years, this was the fourth time the HOA had experienced a swing set failure. The HOA, reportedly believing that the play set was new enough that maintenance was not yet warranted, did not have any regular maintenance or inspection of the play equipment. The particular swing set was about three years old at the date of the incident. When the trial ended, the jury awarded $20 million to Thompson, of which $10 million was punitive damages. The HOA only has $2 million of liability insurance coverage. Many valuable lessons can be drawn from this case, not only for playground equipment, but for any location in which members are using common area land or equipment for recreational purposes. In tort law, carelessness, or negligence, is a common way of imposing responsibility when that negligence contributes to injury. If an association is aware of a dangerous condition and fails to act, liability might be imposed. However, if the association is not aware despite reasonable vigilance, it might not be found liable. One important exception to this is when the area in question is not periodically inspected – the lack of regular inspections could itself be argued to be negligence....

Exclusive Use Common Areas: What You Might Not Know

Many condominium buyers do not understand what they bought until long after becoming an owner. Condominiums consist of two elements: A “separate interest”, called the “unit”, and an undivided equal share in everything else, called common area. However, there are usually also hybrid areas, called “exclusive use common area,” devoted to the exclusive use or benefit of a single condominium yet are still common area. Here are seven oft-unknown aspects about this aspect of California condominiums. Exclusive use common areas are not defined by written or oral statements or even contracts. Regardless of what a neighbor, a Realtor® or even a purchase contract may say, exclusive use common areas are defined by written and recorded documents. Exclusive use common area is defined normally in condominium plans, CC&Rs and Civil Code 4145. Exclusive use is not only balconies and patios. Private patios and balconies are normally characterized as exclusive use common area, but exclusive use areas usually include far more than that. Per Civil Code 4145, unless the governing documents say otherwise, exclusive use common areas include “shutters, awnings, window boxes, doorsteps, stoops, porches, balconies, patios, exterior doors, doorframes, and hardware incident thereto, screens and windows or other fixtures designed to serve a single separate interest, but located outside the boundaries of the separate interest”. Common examples of exclusive use equipment would be air conditioning or water heater equipment serving single units. It’s not your property. Exclusive use area is for the use by occupants of a single residence, but it is still common area, meaning it is owned by the entire association. The user does not own it any...