New California law, under Civil Code Section 5551, required a visual inspection of “exterior elevated elements” by Jan. 1, 2025. That deadline has expired, leaving a liability risk for unaware or otherwise noncompliant HOAs.
The statute arose from 2019’s Senate Bill 326, sparked by a dry-rotted balcony which in 2015 collapsed and killed six people in Berkeley. Apartment landlords are subject to a similar Health and Safety Code statute from SB 721, enacted in 2018.
Section 5551 applies to HOAs with buildings consisting of at least three attached units (so duplex-type condominiums are excluded), and only to areas which are the HOA’s responsibility to maintain or repair. “EEEs” are defined as wood-supported elements over 6 feet above ground level which include walking surfaces and which extend out from the exterior walls of the building. So, in addition to balcony decks, wood-supported stairs and wood bridges connecting buildings could also be EEE’s.
HOAs must every nine years obtain visual inspections of “EEEs” by either a licensed civil engineer, structural engineer, or architect. The inspection can be purely visual, so dismantling of building locations is not required. Inspectors will prepare a written report, and if an immediate threat to safety is discovered the inspector must notify both the HOA and the local building code enforcement authority.
Some HOAs where the only EEEs are balconies are amending their CC&Rs to reallocate balcony responsibility to individual homeowners. Other HOAs are hiring inspectors to comply with Section 5551.
Still other HOAs are pursuing a more comprehensive inspection of the buildings and are making widespread repairs. Unfortunately, many HOAs are violating Section 5551 despite four years’ advance notice.
There is a persistent and completely false rumor that the Legislature passed a one-year postponement of Section 5551’s deadline to 2026. What is true is that the SB 721 (not SB 326) deadline was extended by 2024’s AB 2579, which amended only the Health and Safety Code regarding apartments.
AB 2579 excluded HOAs – subpart “(n)” of that bill says “This section shall not apply to a common interest development, as defined in Section 4100 of the Civil Code” (Section 4100 is part of the Davis-Stirling Act). HOAs still are under Civil Section 5551 and its January 1, 2025 deadline.
Noncompliance is very dangerous, because the statute essentially creates a standard of care. What if, after failing to obtain the inspection required by Section 5551, an HOA has a failure of an EEE that might have been caught by that inspection? What if someone is injured in that failure? Could the HOA and its board be liable for negligence, or even reckless behavior?
Some HOAs may seek to excuse their lack of compliance by invoking financial hardship. However, just as with the rest of the Davis-Stirling Common Interest Development Act, the HOA’s inability to pay is not an excuse from Section 5551’s inspection requirements.
HOAs delaying compliance with Section 5551 are gambling. Is the risk of loss of insurance coverage, loss of immunity, punitive damages, and the risk of possibly avoidable injury to residents a gamble your HOA is willing to take?
Condominium buyers and their Realtors are starting to demand a copy of the EEE inspection report as a condition of the purchase – expect that to become more widespread.
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 questions to Kelly@roattorneys.com.