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California Close to Approving Senate Bill 721 in Response to 2015 Berkeley Deck Collapse

August 17, 2018

In June 2015, the national media was abuzz after an apartment complex deck collapsed in Berkeley, California tragically killing six people. As part of the subsequent investigation by the California Contractors State License Board, it was determined that the cause of the deck collapse was a failure to properly lap the deck to wall flashing over the building paper and deck membrane. As a result, the structural support joists were severally rotted and ultimately failed. Further, reasonable maintenance efforts were deferred by the apartment property manager despite readily apparent indications of water damage.

In response to that incident, the California Legislature introduced a bill in February 2017, Senate Bill 721 (“SB 721”), which is widely expected to be passed and submitted to Governor Jerry Brown later this year. The anticipated bill requires an inspection of exterior elevated elements and associated waterproofing elements, as defined, including decks and balconies, by a licensed architect, general contractor or engineer for certification with the respective county every six years beginning in 2019. This inspection requires a thorough inspection, destructive testing as well as a written report with recommendations. Following the preparation of the written report, the property owner would have 15 days to perform emergency repairs or 120 days to perform nonemergency repairs subject to the oversight of the local enforcement agency. Failure to comply would potentially result in fines, liens and other penalties.

Initially, SB 721 was intended to apply to all buildings with three or more multifamily dwelling units which would have included most apartment complexes as well as attached residential condominiums. The latter of which would have caused significant financial expenditures by residential homeowners association throughout the state in order to comply with SB 721’s expansive requirements. Additionally, SB 721 would have also significantly increased the focus of construction defect litigation on deck construction and waterproofing elements.

However, on June 20, 2018, SB 721 was amended to exclude “Common Interest Developments” from the onerous inspection requirements. Specifically, as defined by the California Civil Code § 4100, “Common Interest Developments” include condominium projects, planned developments and certain community apartment projects. If passed, the current version of SB 721 would shield homeowners associations, condominium and single family detached developers and contractors alike from more rigorous scrutiny of deck and waterproofing construction, maintenance and long term repairs. Of course, SB 721 would still apply to most apartment buildings.

Notwithstanding, given the national attention, various states like California as well as national building codes are initiating changes in response to the tragic deck collapse. Most notably, the 2018 International Residential Code for One and Two Family Dwellings was amended to require wood decks to use at least #2 grade or better, preservative-treated or naturally durable lumber. Prior versions of the International Residential Code were silent on the type of lumber required. The foregoing appears to be motivated by the deck collapse given that One and Two Family Dwellings would not be subject to SB 721’s requirements which are limited to three or more multifamily dwelling units.

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