|
 BALCONY TILE
LEAKS
Boards should be aware that allowing owners to tile or carpet their balconies will cause water damage to the
balcony, their unit, and the unit below.
Damage to Membrane. Tile and the grout used to install
tile are porous; so is carpet. As a result, water will become trapped between these materials and
the waterproofing membrane underneath. This will void the manufacturer's
warranty of the waterproofing
membrane on the deck and will accelerate the breakdown of the
waterproofing materials. The resultant seepage of water into the balcony
structure will lead to wood rot and will also attract termites. Frequently, this
is undetectable. Sometimes, the first sign of trouble is when the owner walks
onto the deck and his/her foot goes through the flooring material. The
structural repairs that follow are quite costly.
 Water Drainage. Another problem caused by tile is that it reduces the
amount of space between the top of the deck surface and the threshold of the
sliding glass door. That means a heavy rain that overwhelms balcony
drains will quickly spill over the threshold into the owner's unit and the
unit below.
Protection. Associations should amend their CC&Rs to clearly define
maintenance responsibilities for balconies and decks. In addition, they should
include maintenance guidelines in the
rules. Finally, architectural guidelines need to be adopted
prohibiting the installation of tile, carpet and other materials over the top of
waterproofing membranes unless the owner is willing to sign and record a
covenant taking responsibility for maintenance and damage, and indemnifying the
association.
NO 10-YEAR
WARRANTY
FOR DEFECTS
QUESTION: Our building is nearly 10 years old. A previous
board president said the builder had given our association a 10-year warranty on common area defects.
What is
the board's responsibility to perform due diligence on defects?
ANSWER: Although many believe
that a 10-year builder warranty exists, there is no such thing. There is,
however, a 10-year statute of repose. That means your association has a maximum of 10 years, unless
the statute is tolled, to make claims against the builder
for latent construction
defects. CCP 337.15.
More importantly, there are other shorter statutes running at the same time that
will extinguish an association's rights. Boards should immediately
contact an attorney if their property is less than 10 years old and they suspect
defects. If they wait, they may lose the
right to seek damages against the developer.
Duty to Investigate. Directors have a
fiduciary duty to
act in the best interest of the association and with such reasonable inquiry as
an ordinary prudent person would use under similar
circumstances. Therefore, if a board knows or suspects they have defects they
have a duty to investigate.
Picking an Expert. In performing their duties, directors are entitled to rely on information and
opinions from experts. Investigations can be performed by construction defect
law firms using a forensic architect or general contractor. I prefer that it be done under the direction of a law firm
so it will have the attorney-client
privilege attach as an added protection for the association. Most construction
defect law firms will perform this initial evaluation at no cost to the
association.
*Thank you to defect specialist Chuck Fenton of Feinberg Grant Mayfield Kaneda &
Litt, LLP for his input on this question. You
can find his contact information in the
Service Directory.
Very truly yours,
Adrian Adams, Esq.
Adams Kessler PLC |
