HOA Homefront: Do our balconies require inspection?

Q: I am on the board for our HOA, which is comprised of single family residences. Does the new balcony law pertain to our situation? Quite a few  of our homes have decks on the rear for a better view, all going through an architectural application to the architectural committee. — G.H., San Clemente

A: Civil Code Section 5551 is the statute created by 2019’s Senate Bill 326, which requires visual inspection of “elevated exterior elements” by Jan. 1, 2025. If your HOA has only detached single-family homes, per subpart “l” of the statute the inspection requirement does not apply.

Also, the statute in subpart “b” says that it applies to condominium associations. So, the statute does not apply to planned developments. If the balconies are not the HOA’s responsibility under your CC&Rs, that is a third reason the inspection requirement does not apply to your HOA.

Q: Our HOA consists of four dwelling units (two buildings, each containing two units). Civil Code Section 5551, Section (l) states the law “shall apply to buildings containing three or more multifamily dwelling units.” I am interpreting that since we have only duplex structures we are not required to have the inspection. Is that correct? — W. E., San Diego

A: You are reading Civil Code Section 5551 correctly. Subpart “l” says the requirement only applies to buildings of three or more attached units. A condominium association consisting only of duplexes would not have any buildings of 3 or more units. Therefore, the statute and its inspection requirements would not apply.

Q: Our condominium association’s governing documents state that in any unit that also has a balcony, the unit owner is solely financially responsible for maintaining the balcony.

Recently, when one unit with a balcony was inspected per SB 326 there were some significant issues identified and subsequently corrected. The owners in the community were surprised to learn that the board decided that per SB 326 it was the responsibility of the association, and not the unit owner, thus all owners had to cover the costs of repair.

If the governing document is clear that the individual unit owner with the balcony is responsible, does SB 326 change that and make the HOA responsible? Regards, F.B., Temecula

A: SB 326 is codified in Civil Code Section 5551. Per Civil Code Section 4775, the HOA takes care of common areas in condominium associations unless the CC&Rs say otherwise.

By indicating your governing documents say otherwise, hopefully, you refer to your CC&Rs, this places responsibility upon the individual owners. If an “elevated exterior element” is not the HOA’s responsibility to maintain and repair, under Section 5551(b)(1), the inspection requirement does not apply. The HOA board cannot alter this allocation of responsibility, because amending the CC&Rs requires a vote of the membership.

However, Civil Code 5551(m) creates confusion, stating that HOA boards “may enact rules or bylaws imposing requirements greater than those imposed by this section.” This is a drafting mistake because boards don’t normally have the power to amend bylaws and also because per Section 4775 maintenance and repair responsibility is allocated by the CC&Rs, not by rules or bylaws.

Kelly G. Richardson, Esq. is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober LLP, a California law firm known for community association advice. Submit potential column questions to kelly@roattorneys.com.

Source: Orange County Register