930- No CA Appreciating the Nuances of Structural Defect ... the Nuances  · Appreciating the Nuances…

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    2018 Northern California Law Seminar & Expo

    Appreciating the Nuances of

    Structural Defect Issues and

    Related Legislation

    Presented by:

    John P. Gill, Esq, Hughes Gill Cochrane Tinetti, PC

    Roy Helsing, CCAM, PRA, RS, The Helsing Group, Inc., ACMB

    Ken Kosloff, Richard Avelar and Associates

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    Session Outcomes REVIEW the inspection, reporting, and repair obligations required

    by pending legislation

    UNDERSTAND the impact on managers and associations

    IDENTIFY the hidden challenges facing condominium associations

    LEARN strategies to help clients identify and implement their legal obligations

    RECOGNIZE the limits of the manager role and learn how to partner with others effectively to get the job done

    SB 721 Two-Year Bill Background what prompted this bill

    Substance off the bill in current form

    Impact on managers and associations

    Destructive testing what does it really mean?

    Berkeley Balcony Collapse Library Gardens Apartments construction

    completed in 2006

    June 16, 2015: 5th floor balcony collapsed

    13 people fell 40 feet 6 died and 7 injured

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    Independent InvestigationCSLB investigated causes of collapse:

    . . . imposed load of the (13) students was well within the design limits of the balcony structure

    Dry rot along the top of the joists suggests long-term moisture saturation . . . of OSB Oriented Strand Board in direct contact with the joists

    Additional locations of water damage and dry rot were found to the wall OSB sheathing and the face of the doubled deck joists along the deck edge to wall interface

    Independent Investigation (CONT.)Contributing factors to the balcony failures:

    Failure to use pressure-treated structural support joists

    Substitution of OSB sheathing for plywood

    Failure to provide the specified membrane protection which could have protected the OSB sheathing from moisture saturation

    Independent Investigation (CONT.)Balcony deck-to-wall sheet metal flashing was not lapped over membrane or lath paper, resulting in extensive damage and dry rot to building wall OSB sheathing

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    Berkeley Inspection OrdinanceOn July 14, 2015, 28 days after the balcony collapse, Berkeley City Council approved an emergency ordinance mandating inspections every five years of all balconies and other weather-exposed structures in all multi-unit buildings

    Senate Bill 721 Follows Berkeley Ordinance

    Introduced in 2017 legislative session

    Supported by Consumer Attorneys of California (state trial lawyers organization)

    Create Civil Code 4776 to apply to condominium CIDs

    Bill specifically excludes planned developments and an individual condominium owners separate interest

    SB 721 Inspection Requirements

    As currently drafted, SB 721 would require: Inspection at least once every six years of the load-bearing

    components and associated waterproofing elements of exterior elevated elements that the association is obligated to repair, replace, restore, or maintain

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    SB 721 Inspection Requirements (CONT.)As currently drafted, SB 721 would require:

    Inspections by a licensed architect, civil or structural engineer, or an individual certified as a building inspector or building official from a recognized state, national or international association, as determined by the local jurisdiction

    SB 721 Inspection Requirements (CONT.)Exterior elevated element means common area and exclusive use common area balconies, decks, porches, stairways, walkways, entry structures, and their supports and railings that

    extend beyond exterior walls of the building,

    have a walking surface elevated more than 6 feet above ground level,

    are designed for human occupancy or use, and

    rely in at least substantial part on wood or wood-based products for structural support or stability of the exterior elevated element

    SB 721 Inspection Requirements (CONT.)Associated waterproofing elements include flashings, membranes, coatings, and sealants that protect the load-bearing components of exterior elevated elements from exposure to water and the elements

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    SB 721 Inspection Requirements (CONT.)Load-bearing components are components that extend beyond the exterior walls of the building to deliver structural loads from the exterior elevated element to the building

    SB 721 Inspection Requirements (CONT.) Must determine that exterior elevated elements and their

    associated waterproofing elements are in a generally safe condition, adequate working order, and free from any hazardous condition caused by fungus, deterioration, decay, or improper alteration to the extent that the life, limb, health, property, safety, or welfare of the public or the occupants is not endangered

    MinimumInspection Requirements

    Identify each exterior elevated element that, if found to be defective, decayed, or deteriorated to the extent that it does not meet its load requirements, would . . . constitute a threat to the health or safety of the occupants

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    MinimumInspection Requirements (CONT.) Assess the load-bearing components and associated

    waterproofing elements of the exterior elevated elements using methods allowing for the evaluation of their performance by direct visual examination or comparable means of evaluating their performance (destructive testing)

    A sample of at least 15 percent of each type of exterior elevated element shall be inspected

    MinimumInspection Requirements (CONT.) Inspectors assessment must address:

    Current condition of the exterior elevated elements Expectations of future performance and projected service life

    (for purposes of reserve study funding) Recommendations for further inspection Recommendations for repair or replacement

    AdditionalReporting Requirements

    Associations initial inspection must be completed by January 1, 2024, and every six years thereafter

    Following initial report, inspector must submit a final report indicating that any required repairs have been completed

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    Repair Obligations An exterior elevated element found to be in need of

    repair or replacement by the inspector shall be corrected by the association

    Association shall have access easement through separate interests as necessary to accomplish inspections and any necessary repairs

    Repair Obligations (CONT.) Repair and replacement work by qualified and

    licensed contractor must comply with: Inspectors recommendations, or alternative recommendations

    by another licensed professional

    Applicable manufacturers specifications

    The California Building Standards Code, consistent with Health & Safety Code 17922(d)

    Repair Timeline Immediate threat requires immediate corrective action

    If no immediate safety threat, association must apply for a permit within 120 days of receipt of the inspection report

    After permit approval, association has 180 days to make repairs

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    Effect on Levy of Association Assessments

    All costs associated with inspections and repairs (including non-threatening conditions) are considered an emergency situation per Civil Code 5610(b)

    Section 5610(b) permits an emergency assessment without a member vote

    Association/Management Responsibility

    Board of Directors shall cause inspections and testing to be completed

    Association is responsible for compliance

    Nothing required herein shall be the responsibility of the associations managing agent or its employees

    Manager Considerations Educating Board members Scope of site visits Do NOT assume the role of expert Develop system for receiving member reports and

    relaying concerns to Board Authority to contact construction professionals Avoid assurances of safety

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    Effect on Budgets Assemble inspection and testing team early

    Inspector General Contractor Structural Engineer

    Logistics of inspections and testing Member Communication Access to Unit Interiors Project Manager Retention

    Developer Considerations Implications of SB 800

    Builders may begin to re-map condominiums to include balconies within units

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    Risks and Challenges What does determine mean? Is testing of 15% of exterior elevated elements enough to

    determine the condition of all such elements? What does 15% mean?

    Risks and Challenges (CONT.) Budget considerations

    Board and member education considerations

    Risks of noncompliance

    Manager liability avoidance

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    Thank you!

    John P. Gill, Esq.Hughes Gill Cochrane Tinetti, PCjgill@hughes-gill.com(925) 926-1200

    Ken KosloffRichard Avelar & Associates Architectskkosloff@ravelar.com(510) 893-5501

    Roy HelsingThe Helsing Group, Inc.roy@helsing.com(925) 355-2100