Berding | Weil Community Association ALERT Newsletter
Legal News and Comments for Community Association Boards and Managers Issue #43 • April 2010
A Wakeup Call
Failed Balcony Railing Causes near Fatal Injuries
by Tyler P. Berding, Esq.
Can we ever take the condition of a building for granted? Do we? The building occupants, to get in and out of their units on second and higher stories, use components like balconies and staircases every day. Do we really know if they are safe? As property managers or board members of community associations, how can we be sure? When was the last time someone took a professional, in depth look at those parts of your buildings?
We know from reading dozens of expert investigations that quite often some of the most insidious problems are hidden from view—for example, weaknesses in structural components that are used every day. This is especially true in older apartment complexes that have been converted to condominiums. Years of neglect by the apartment owners are passed on to the condominium buyers with no warnings or disclosures.
Now we find a similar situation that almost turned very tragic:
KRON TV News, April 1, 2010
ANTIOCH (BCN) -- Building inspectors found evidence of dry rot at an apartment complex in Antioch where three people fell from a second-floor balcony Thursday morning after a wooden railing gave way, Antioch code enforcement manager Ryan Graham said. As a result, he said, the residents of three units at the complex will have to be temporarily relocated. The fall occurred at about 7:30 a.m. at the Twin Creek Apartments at 1111 James Donlan Blvd. Contra Costa County Fire Protection District Battalion Chief Alan Hartford said the victims are two women and a young girl about 8 or 9 years old.
"They were leaning against a railing and the railing gave way," Hartford said. The three fell about 15 feet to the ground below, an area with dirt and bushes, he said. One woman, who may have briefly lost consciousness, appeared to have suffered head, neck and back injuries and was airlifted to John Muir Medical Center in Walnut Creek, Hartford said. The second woman and the girl were taken to hospitals by ground ambulance. The victims are all expected to survive, Hartford said. He said the little girl was the least injured.
This incident could just as easily have happened in a condominium complex, in fact there is probably no appreciable difference between this complex and many conversions, or for that matter, many older condominium buildings. Most low-rise multi-family complexes rely on wood members for structural support throughout. Wood rots over time, especially if the water proofing elements of the buildings have not been adequately maintained.
2010 Community Association Statute Book
Get Berding|Weil's Community Association Statute Book 2010 Edition, including the Davis-Stirling Common Interest Development Act.
Berding|Weil Q&A of the Day
By Tyler P. Berding, Esq.
Our condominium complex was converted from an older apartment building about three years ago. It looks all right from the outside, and the converter says the budget meets state law. We have had some water leaks and have discovered some hidden problems, like dry rot—what should we do?
The state requirements for inspection of a complex such as yours require only a "visual" review of the "accessible" components. It is easy to miss problems that are hidden inside of walls or floors. Unfortunately, many older wood frame complexes suffer from such hidden damage, and the necessary repairs are not included in the typical reserve budget that the converter prepares. You should have your project thoroughly inspected, including those hidden areas where water damage might occur.
The converter of our condominium complex says that all sales were "as is" and that he has no obligation for repairs that were never contemplated in our budget. Is that true?
There is no such thing as an "as is" sale of a converted condominium, other than perhaps the obvious improvements (or lack of them) within each unit. The "common area," all of the building except for the interiors of the units, is the responsibility of the homeowner's association. That association is not a purchaser of a unit or a party to the sales contract, and is not bound by an "as is" provision in any case. The converter is responsible for equipping the new association with an adequate budget for maintenance and repairs and can be held liable for failing to do so.

The Great Foreclosure Debate: Part III
The article below was sent to us by Mark Benson, a community association expert in Florida.
His thoughts provide additional perspective on the continuing debate over assessment foreclosures and the effect of non-foreclosure policies on the remaining owners.
Condos in Crisis
Personal Rights or a Community's Economic Survival--Which comes First?
What follows are comments and a post forwarded to me by Fred Fischer, followed by my response to that post.
The Great Foreclosure Debate --
Readers Respond
Here are two of the letters we received in response to
"The Great Foreclosure Debate: Should Community Associations use Alternatives to Foreclosure to Protect Their Cash Flow?"
Condominium Conversions:
Old Apartment or New Product?
Does Caveat Emptor apply to Conversions?
The spate of conversion of old apartments to condominiums has finally abated largely due to the failed economy…»
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