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Legal
project, not just those components covered by §17973. While the limitation period following actual “discovery” of the problem can be shorter, many hidden building defects are unknown to the owner until they cause visible damage, or an inspection uncovers them. A builder or contractor can be sued for construction defects during that ten-year period when a construction failure leading to damage is discovered, but once the ten-year period has lapsed and absent fraud, usually little can be done.
The inspection required by §17973 operates as belated quality control, uncovering defective construction that can lead to damage or injury. These issues should be identified while the building is under construction but frequently are not. The inspection of those components mandated by the statute will either give the owner an assurance of proper construction or discovery of the contractor’s failure to build the building correctly. If the latter is the case and the building remains within the ten-year limitation period, a claim against the contractor could provide the building owner with the funds to cover the cost of repair and compensation for loss of use or tenant concessions.
Encouraging inspections within the ten-year limitation period, not just of those portions of the building covered by §17973, but of all other potentially defective building components, can help to satisfy the fiduciary duty of asset managers to the owners, shareholders, and others with a financial stake in the project. Should building defects exist, a timely claim can provide significant relief that will be lost if the limitation period for such claims is allowed to lapse.
Government regulations are rarely welcomed. But where compliance with a statute provides real value to a building owner and protection against legal jeopardy, its value cannot be overstated.
1. Senate Bill 721 effective January 1, 2019.
2. California Health and Safety Code §17973 does not apply to condominiums. Condominium buildings have a similar, although not identical,
balcony safety inspection requirement at California Civil Code §5551. Inspectors who may offer their services to the owners of both types of
projects should be aware of certain critical differences in each statute’s requirements.
3. The liability of a contractor, and the rights of the owner, are also governed by applicable law and any contract between the parties. A lawyer
should be consulted to evaluate the strength of the case.
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Tyler Berding, founding partner of Berding & Weil LLP, has represented the commercial and residential real estate industry since 1974. Mr. Berding has litigated numerous building product and construction failures. He primarily represents residential building owners and commercial investors. For more information, go to: www.berding- weil.com.
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