Page 67 - AAGLA-FEB 2022

Legal
The Balcony Safety Inspection Bill:
Avoiding Owner Liability
BThe Benefits to Building Owners of Health & Safety Code §17973
By Tyler Berding, J.D., Founding Partner Berding & Weil LLP
y now, most owners of apartment buildings it did in Berkeley. The converse is that the earlier leaks or with balconies and other elevated exterior moisture intrusion are discovered, the easier and cheaper components know that safety inspections it will be to fix those problems. In Berkeley, it appears that are required by California Health and Safety water entered the structural supports for the balcony at the Code §17973. This regulation was inspired juncture of the balcony and the building. Compounding that by the collapse of a balcony in Berkeley, problem was a lack of ventilation of the enclosed balcony California, in June of 2015 that killed six Irish supports preventing moisture trapped in the balcony
exchange students and badly injured seven others. Generally, assembly from drying out. When extensive wood rot caused
the statute requires balconies, walkways, staircases, and other “exterior elevated elements” built primarily of wood or wood-based products on residential buildings of three or more units, to be inspected for structural safety every six years. (Editor’s Note: The first inspection must be completed no later than January 1, 2025.)
These inspections must include a visual investigation of “load-bearing components,” even if that means removing portions of the building to do it. The assessments must be done by a licensed architect, civil or structural engineer, or a general contractor holding specific specialty licenses. The statute requires that most wood-based exterior elements intended for human occupancy be inspected and their condition and life expectancy reported. Findings that indicate probable safety hazards must be reported to the local building official.
It is always tempting to regard new government regulations as just more interference with the rights of property owners. However, there is ample evidence of building failures resulting in injury or death to justify this new requirement. But what rarely is discussed is how this new statute can be beneficial to the owners of apartment buildings and preserve an income producing asset .
When wood is used to construct a building, it is vulnerable to rot if moisture is present. Many low-rise apartment buildings have framing, structural supports, railings, decks, exterior staircases, and elevated walkways built primarily of wood. We know that the longer moisture invades wood materials the more decay and damage results to where the structure of a balcony or other walking surface can fail, and fail spontaneously with devastating consequences, as
that balcony collapse, the building was only eight years old.
Had the inspection required by the “balcony inspection bill,” Health and Safety Code §17973, been conducted within six years of construction of that building, the inspector would have opened the soffit of the balcony and tested the joists for moisture content and potential rot. Moisture in the wood members supporting that balcony, and the likely visible signs of deterioration, would have been detected and the source of the moisture sealed. Any structural weakness could have been fixed, and a tragedy avoided. Like cancer, early detection is the key to avoiding wood rot and deterioration of a component to the point of failure. Every six years is not too often to inspect load-bearing components for potential life-safetyconcerns.
Even setting aside the life-safety aspect, wood rot, caught early in the life of a building, can be repaired inexpensively when weighed against the cost of total replacement of, say, a balcony, deck, or stairway. And certainly, at much less cost thanthepossibletragicpriceofacollapse.Compliancewith §17973 is an operations expense, but it can also promote the long-term preservation of the capital asset. Considering that the expense of the required inspections of investment property and any immediate repairs can be deductible business expenses, an inspection that preserves asset value makes sense, with the added benefit of protecting owners from liability if an occupant or guest is injured.
Beyond avoiding liability, the required inspections can also provide an avenue for a significant monetary recovery in newer buildings. California law allows a building owner ten years to discover, and file a claim for, “latent” defects—a ten-year “warranty” of sorts which applies to the entire
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