California's Right to Repair Bill SB-800 and It's Effects on Decks and Their Warranties and Maintenance
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Of the top ten building component items that get named in suits as being defective, waterproof decks are high on the list, despite the fact that they aren't found on every Association. Windows and doors, roofs and foundations, all are found on every house built and so it seems natural that they would be on this top ten list. Waterproof decks are built on perhaps 30-40% of new houses and around 50-60% of Condominiums. Decks add an extra "room" to a unit and definitely add value, as people love an outdoor space to call their own and will pay more for a Condominium that has a private deck.
Several years ago, the California State Senate, in an effort to help protect builders from being easy pickings for construction defect attorney's suing for actual or perceived defects in condominiums, passed a comprehensive law, known as SB-800. The bill laid out the steps an Association must follow to notify builders and allow them an opportunity to make repairs or replace defective components of their homes, giving them tight timelines that must be met, before the Association can file a suit. The result has been a return of builders to the Condominium market in California, allowing them to build without the fear of getting sued at the drop of a hat by the Association. In my estimation, this bill has been a great success and has benefited everyone (except maybe defect attorney's).
New industries have evolved from this legislation, mine included, such as companies who write HOA maintenance manuals, third party inspectors and a slew of authors have written books and articles about this bill's mandates. Attorneys specializing in the writing of CC&R's for Associations have seen a demand from builders to write precisely worded documents that eliminate the vague language commonly seen in older documents. Maintenance responsibilities are far learer than ever before over who is responsible for what in an Association, especially exclusive use areas.
In the couple of years since SB-800 passed, manufacturers have adjusted to the new rules and have written new stipulations into their warranties and maintenance instructions. This is especially true in the waterproof deck industry. As a consultant and contractor, I need to keep up on the ever changing instructions for maintenance and warranty requirements, so I am not surprised by these changes, heck, manufacturer's need to protect themselves too.
Warranties are now being written that restrict the limit for damages to the cost of the materials. Simply put, if a manufacturer's product is defective, and as a result of that it fails and causes damage to your property, whatever it is, mold damage, substrate damage, termites or dry-rot or personal property damage, the most you can expect from the manufacturer will be a check for the cost of the materials sold on the job. A $100,000.00 deck coating job usually has about 25% of that in material costs, limiting the manufacturer to only $25,000.00 in warranty costs in this instance. Mold remediation alone in a single unit can cost $15,000.00. Repairs to framing and substrate are costly, that $25,000.00 is a drop in the bucket. Investigations into alleged defects will cost many times that amount.
I was amazed though when I was doing some research on the web and found one manufacturer's maintenance and warranty requirements that read "MANDATORY MAINTENANCE CARE PROCEDURES", which explicitly outlined the owners responsibilities for this particular product. Reading through it, it stated the requirements the owner must perform to maintain a limited coating system warranty with the manufacturer.
Not surprisingly it states requirements for cleaning, repairs to damage and periodic replacement of the top coat. Another requirement is inspections of the coating. OK, I thought to myself that seems reasonable, decks should be checked occasionally. Continuing to reading down the instructions, I then came to the Inspections section, which is where I got quite a jolt. I strongly agree (admittedly, it's in my interests, but it is also in an Association's best interests) with their statement "Inspections provide a basis for proper maintenance to ensure the life expectancy of the …coating system."
Then came the whammy-and I quote directly from this manufacturer's Technical Bulletin:
Monthly - Documented(1) physical inspections to determine: If there are any areas of excessive wear or physical damage to the coating system.
Semi-annually - Documented(2) physical inspections inspections must include (but are not limited to)...
This section went on to list the various items that must be checked.
Looking at the fineprint in the footnotes for #1, the monthly inspections, it requires a written inspection log indicating times and dates of inspections and to identify the employee performing the inspection.
Footnote #2, for the semi-annual inspection (hold onto your chair!) then says "Photograph or videotape the deck coating system and provide copy to manufacturer within twenty days of inspection."
An Association reading this should feel like Mike Tyson just delivered a full body shot to the abdomen! The requirements placed on the owner of this deck system, combined with the limited warranty, make it extremely unlikely that you will collect one dime from a manufacturer, without spending a fortune on Attorney's fee's.
Another requirement of deck coating manufacturer's and many installers that will void your warranty is allowing the failure of contiguous building materials to occur. That is to say, if the wood siding on the wall next to the deck fails and allows water intrusion, water can migrate under the deck coating, into the framing and substrate. The deck will be slowly damaged by hidden water intrusion, and manufacturer's aren't about to let themselves be held responsible for that. Maintenance and repairs to contiguous materials are essential to maintaining your deck warranty.
The effect of these types of maintenance and warranty requirements will probably be that few if any suits will be filed against manufacturers. Installers will (and need to be) held to higher standards for following installation instructions exactly and to fully disclose all their terms, warranties and maintenance agreements up front as part of their bid package.. Third party consultants and inspectors will see an increase in business as new Associations are built and require inspection services to maintain their warranty. Attorneys for manufacturers will end up with plenty of business writing tighter warranties and maintenance requirements, generating even more business for consultants and inspectors.
Associations are now on notice that they must follow the (ever changing) rules of the game, or they will find that they have little or no recourse against the manufacturer, installer or builder. It is of course, cheaper to inspect and repair small problems before they become big problems. As a contractor, I have seen the costs of replacement and rebuilding for Associations who failed to maintain and inspect their decks rise dramatically. A small crack in a deck that might cost $500.00 or even $1,000.00 to get properly repaired, left unrepaired for several years, end up costing $5,000.00 to $10,000.00 to tear out the deck and rebuild framing damaged from water intrusion. Add in the angry resident, the overworked HOA manager and all the disruptions and the costs of inspection and repairs becomes practically irrelevant.
Builders need to carefully consider their options when it comes to selecting deck coatings, the cheapest bid should not be the primary factor in picking what will be put down. Careful review of all the terms in the manufacturer's warranty and maintenance requirements need to be implemented into the CC&R's and specific disclosures should be made to the Association during the transition when turning the Association over to the owners. By demanding higher quality, longer lasting materials, builders will reduce their exposure to liability.
Installers need to develop standards and checklists before just showing up at a job and slapping down materials. They need to become very familiar with other trades work, reviewing the other trades work, recognizing and calling out deficiencies and notifying the builder to make repairs first. Woe to the contractor who shows up at a job and installs decking over unblocked plywood, negatively sloped framing or improperly nailed substrate, they will end up holding the bag for a failed deck.
The Association will have to maintain their decks as specified or suffer the consequences. If the maintenance instructions say to reseal the deck every 3 years, and the Association fails to do so, the installer and manufacturer of that product will be free from liability if the deck then fails . The Association must maintain a log of their decks inspections, inspect their decks as per the instructions, CC&R's or warranty requirements. The burden of proof for defects is now squarely on the Association and failure to maintain will void their warranty.
Bill Leys is a former HOA manager, he has written other articles about deck coatings and their care. Bill has spoken at ECHO's Annual Seminar, APRA's Annual Symposium and CAI Chapter events. Bill's company, DeckExpert.com offers consulting and inspection services to HOA's.
Protect your valuable decks! This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Bill Leys, Deck Expert, inspects over 20 items on your deck, and provides a written report with pictures documenting the inspection and any findings.
Did you know that Central Coast Waterproofing, our sister company, offers HOA's, Apartment Communities, Hotels/Motels and other clients installation, maintenance and repair services for decking, waterproofing, pool decks, concrete coatings and decorative finishes? Contact Bill Leys at 805-801-2380 to schedule your free estimate.
