Elevated Accountability: The Role of California SB 326, SB 721 in Exterior Elevated Element Safety

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Senate Bills 721 (SB 721) and 326 (SB 326) are two pieces of California legislation related to the inspection and safety of wood framed balconies, decks, elevated walkways, and stairs in residential buildings. Legislators introduced these bills in response to tragic incidents of a balcony collapse in Berkeley, California, and a stairway collapse in Folsom, California, both of which occurred in 2015 and resulted in several fatalities.

In 2018, SB 721 became the first law in California to introduce the inspection of exterior elevated elements (E3s) for multifamily buildings, requiring inspections on a six-year cycle. The bill defines E3s as "balconies, decks, porches, stairways, walkways, and entry structures that extend beyond exterior walls of the building and which have a walking surface that is elevated more than six feet above ground level.” E3s are designed for human occupancy and rely on wood or wood-based products for structural support or stability. An E3 also includes the associated railings and guard-walls.

Inspections must be performed by a qualified individual (e.g. licensed architects, civil or structural engineers, certain building contractors, or certified building inspectors). Inspections must sample at least 15 percent of each E3 type in a property and require "direct visual examination or comparable means," often necessitating exploratory openings where finishes conceal structural elements. These openings are often destructive in nature as they require removing or cutting through the finishes. The purpose of the inspections is to "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." Any conditions observed to be of life-safety concern must be reported to the owner immediately and reported to the local code enforcement agency within 15 days of the inspection. The owner is required to provide temporary repairs or shoring to address the life-safety concerns within the same period.

Following the inspections, the inspector must submit a stamped and signed report to the owner within 45 days. The report must address the elements' current condition through narrative and photographs, provide repair recommendations and any recommendations for further inspections, and include a statement of the expectations for the future performance of the E3s until the next inspection cycle. Owners must file for a permit within 120 days of the report and complete the repair within 120 days of permit approval for non-emergency repairs.

Although an early SB 721 draft covered condominiums and other "common interest development" buildings, the legislature removed this provision before finalizing the bill. SB 326, which focuses on common interest development buildings, was passed in 2019 to close this gap. Although similar in scope and intent with SB 721, SB 326 mandates inspecting sufficient units every nine years to provide 95 percent confidence that the sample's results reflect the condition of the whole. Only licensed civil engineers (added by California Senate Bill 2114), structural engineers, or architects can perform SB 326 inspections. SB 326 leaves the decision of exploratory openings up to the inspector’s judgement, rather than requiring direct visual observation of structural elements. Like SB 721, SB 326 mandates immediate preventive measures if a life-safety issue exists. The inspector must provide the report to the association, and if an E3 poses an immediate safety threat, submit it to local code enforcement within 15 days. There is no timeline for completing the repairs identified in the report for SB 326 inspections.

SB 326 and SB 721 inspections do not require comparing existing E3s to current building codes. Both bills focus on evaluating the condition of E3s to ensure they are functional, free from damage, deterioration, or decay, and not at risk of partial or complete failure.

These two E3 inspections bills may introduce a level of confusion for California property owners, associations, and inspectors. In response, this article aims to provide recommendations to practitioners by offering insights into the nuances of each bill.

The sample size in SB 326 and SB 721 inspections are critical, as it directly impacts confidence in findings and inspection costs. SB 721 stipulates inspectors should evaluate no less than 15 percent of each type of E3. In contrast, SB 326 introduces a more intricate criterion, necessitating "a random and statistically significant sample of exterior elevated elements for which the association has maintenance or repair responsibility."

Balconies, elevated walkways, and stairs are different E3 categories due to their various purposes, forms, and construction. The inspector can break each category into additional types considering varied plan geometries, framing layout, and architectural finishes. When identifying different E3 types on a property, inspectors should determine whether multiple "types" exist within a given E3 category. The inspector must accurately identify all E3 types on a property to ensure the inspection sample adequately represents the entire population.

SB 326 defines a "statistically significant sample" as "a sufficient number of units inspected to provide 95 percent confidence that the results from the sample are reflective of the whole, with a margin of error of no greater than plus or minus 5 percent." This does not translate to a fixed percentage, as it depends on the total number of each E3 type on the property.

The chart in Figure 1 plots the sample-to-population ratio required to achieve 95 percent confidence as calculated based on the statistical definition of a confidence interval, which is roughly inversely related to the population size.

At lower population sizes, almost all elements must be inspected to achieve the mandated confidence interval. As the population increases, the sample-to-population ratio slowly decreases but remains above the 15 percent required by SB 721 until the population size exceeds 2,100.

The population size is not always the total number of E3s on a property. When multiple E3 types are present, each type has its population, requiring a sample. In practice, this means dividing all E3s into smaller groups by type, which often necessitates the visual observation of nearly all E3s to comply with SB 326.

SB 326 and SB 721 set forth the minimum number of E3 inspections. However, the inspector should use professional judgment to determine whether conditions on-site warrant inspecting additional units beyond the minimum requirement. For SB 326 inspections that include concealed framing, exploratory openings are not required by the bill, however, the authors recommend selecting a minimum of 15 percent of E3s for exploratory openings to observe the concealed framing.

When selecting E3s to inspect, consider their spatial dispersion across different building elevations, locations within a complex, levels, and corner or end units. The spatial dispersion can result in varying amounts of sunlight, wind, debris accumulation, and water from roofs or overhanging E3s and can result in prolonged moisture exposure where dew, trapped debris, or water infiltration accelerate deterioration. Additionally, plan variations, framing configurations, and architectural features can affect E3 detailing, altering its susceptibility to water intrusion and exposure to the elements. Together, these conditions contribute to different levels of risk for decay and deterioration.

Site plans can only partially reveal the factors influencing E3 exposure before a site visit. The authors recommend selecting spatially dispersed E3s for inspection to account for variations in conditions and when possible, conducting a preliminary site walk before selecting E3s.

Balconies, exterior stairways and landings, and elevated walkways are the most common E3 structures, but not all buildings contain them. Additionally, some elements within a building may not qualify as E3s due to their layout and construction. For example, a balcony above an interior space is not classified as an E3 per SB 326 and SB 721. Figure 2 provides examples of elements that meet the E3 criteria.

E3s have various construction types and waterproofing systems. There are two overarching categories: exposed framing and concealed framing. E3s with exposed framing can have a topside waterproofing system or, more commonly, no waterproofing, allowing water to pass freely through the deck (i.e., open deck). In the open deck condition, sheet metal flashing occurs at the exterior building wall to integrate the E3 interface with the building waterproofing. E3s with open deck framing typically comprise wood joists supporting wood or engineered wood decking.

E3s with concealed framing vary significantly in construction, with different enclosure materials and waterproofing systems. These variations create numerous possible combinations of enclosure and waterproofing systems, adding complexity to their inspection and assessment.
E3s are commonly framed using either cantilevered joists extending into the building or simply supported joists framing between walls or to exterior posts and beams. Understanding the framing arrangement, whether cantilevered or simply supported, is crucial for identifying potential failure points and the conditions under which failure may occur. Identifying these failure points can help when selecting locations for inspection openings.

E3 inspections take one of two forms. The first is a visual inspection of exposed framing and waterproofing using nondestructive evaluation methods. Inspectors should observe from both the underside and top side of E3s, with particular attention paid to details of susceptible construction prone to water infiltration. These include scupper penetrations, railing attachments through waterproofing membranes (especially top-mounted attachments), exposed upward-facing end grain (such as posts without post caps), and connections that rely on nails in withdrawal from the wood end grain. Visual inspections should note the presence of abnormal staining of the deck or ceiling soffit, soft spots in the deck, loose railings or balusters, corroded bolts and fasteners, evidence of ponding, stucco cracking, biological growth, and improper deck slopes, among other items.

For elements with exposed framing, visual inspection with nondestructive evaluation of the framing and waterproofing is typically sufficient to determine if decay or deterioration are present. For E3s with concealed framing, visual inspection of exposed finishes and waterproofing can identify locations of potential water infiltration due to distress and discoloration in the finishes, waterproofing, and building enclosure systems. However, visual inspection of finishes does not always correlate with the condition of the concealed framing, so further investigation is necessary.

SB 721 requires direct visual inspection of the framing at a minimum of 15 percent of each E3 type, requiring exploratory openings large enough to assess the concealed framing. SB 326, however, only requires visual inspection of the E3s in the "least intrusive method necessary.” Additional inspections may be necessary at the inspector’s professional discretion if they observe signs of potential deterioration or damage to E3 components.

Regardless of the bill, the authors believe exploratory openings should be made to inspect concealed framing for structural deterioration or decay. Openings should be placed where signs of water infiltration are observed, as well as at select E3s without visible damage. Opening location should also account for likely locations of water infiltration through weak points in the waterproofing, or critical locations where decay could cause structure failure. This approach helps assess the condition of concealed framing, even in E3s that appear undamaged based on visual inspection alone.

When conducting inspections, it is important to develop a consistent notation scheme between all inspectors and review E3 structural or architectural drawings, if available, to identify potentially susceptible details for water infiltration prior to arriving on site.

The properties described by SB 326 and SB 721 are owned and managed by different stakeholders. Each stakeholder requires varying involvement and education on the basics of these two bills from the inspecting party. It is important to have a conversation with stakeholders about the intent of the inspection and what the investigator will be looking for while on site. It is also important to discuss which exterior elements are covered by the relevant bill and which are not but may still pose similar levels of risk.

Both SB 326 and SB 721 require the communication of findings through a report, which includes:

SB 721 reports should also include recommendations for further investigation. This may be a recommendation when systemic deterioration or decay have been identified, and further investigation will provide a more complete picture of required repairs.

Inspection reports under SB721 must be submitted to the owner/owner’s agent within 45 days of the inspection. For either bill, if items require immediate attention by the property, the report must also be submitted to the local enforcement agency within 15 days of submitting to the owner.

As both bills require inspecting and commenting on the conditions of the structural and waterproofing systems, the inspector must have sufficient experience in both areas. Otherwise, they should partner with someone qualified to investigate the system that they are not experienced with.

These reports serve as the main mechanism for communicating findings to the client and as baseline references for future inspections. It is beneficial to include the inspection scope and a discussion of SB 326 and SB 721 requirements to ensure stakeholders have a comprehensive reference document that can be used for future inspections.

Several areas of SB 721 and SB 326 can be aligned for clarity and simplicity. Alignment of the bills’ inspection frequency, sampling guidelines, and qualified inspectors would simplify the process for all involved.

Additionally, future versions of SB 326 should address explicit repair directives. Whether or not to repair a deficiency that may lead to a life safety concern should not be left up to the owner of the building. Instead, the bills should have a consistent repair timeline across all multifamily buildings.

It would also be helpful to publish supplemental explanations for the bills, such as pictorial representations of what qualifies as an E3. The City of Berkeley's balcony inspection ordinance, which predates SB326 and SB721, has supplemental online directions ensuring that all practitioners properly interpret the ordinance's intent and rules.

Lastly, the various authorities having jurisdiction (AHJs) across the state have varied understanding of these bills, especially their role in enforcement. The state should increase education efforts so that AHJs understand the bill requirements, implications for building owners, and their roles in the process. ■

About the Authors

Zander Danto is an Associate III at WJE in San Francisco, California, and is a member of the SEAONC Existing Building Committee.

Paul Cordova is an Associate Principal at Simpson Gumpertz & Heger in Oakland, California, and is a member of the SEAONC Existing Building Committee.