Published in the ECHO Journal, September 2007
Waterproof decks are high on the list of the top ten building component items named in lawsuits as being defective despite the fact that they are not found in many association. Windows and doors, roofs and foundations, all are found on every residence built; thus it seems natural that they would be on this top ten list. Waterproof decks are built on perhaps 30-40 percent of new houses and around 50-60 percent of condominiums. Decks add an extra “room” to a property and clearly add value because residents want their own outdoor space of and will pay more for a residence with a private deck.
Keep Up or Pay Up
Several years ago, the California Legislature, in an effort to help reduce the number of lawsuits for actual or perceived defects in condominiums, passed a comprehensive law known as SB-800. The bill laid out the steps that associations must follow to notify builders to allow those builders an opportunity to make repairs or replace defective components, giving them tight timelines that must be met, before an association can file a suit. One result has been a return of builders to the condominium market in California, allowing them to build with reduced fear of lawsuits. In my estimation and that of many professionals, this bill has been a great success and has benefited everyone.
New industries have evolved from this legislation—companies that write HOA maintenance manuals, third party inspectors and a slew of authors who have written books and articles about the bill’s mandates. Attorneys specializing in the writing of CC&Rs for associations have seen a demand from builders for precisely worded documents that eliminate the vague language commonly seen in older documents. Maintenance responsibilities—who is responsible for what, especially exclusive use areas—are far clearer than ever before.
This deck didn’t look great one day and crack overnight!
Years of neglect allowed this deck to fail.
In the several 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 with the ever-changing instructions for maintenance and warranty requirements. Thus I am not surprised by these changes; manufacturers do 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 defect fails and causes damage to your property (whatever the damage 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 deck coating job usually includes about 25 percent in material costs, limiting the manufacturer to only $25,000.00 in warranty costs in this instance. Mold remediation in a single unit can cost $15,000. Repairs to framing and substrate are also costly; so the $25,000 becomes a drop in a bucket. In addition investigations into alleged defects will also cost many times that amount.
An expensive repair probably started with a nail backing out of the plywood, allowing water to penetrate in. 
I was amazed when I found one manufacturer’s maintenance and warranty requirements included “MANDATORY MAINTENANCE CARE PROCEDURES,” that explicitly outlined the owners’ responsibilities for this particular product. The procedures stated the requirements an owner must perform to maintain a limited coating system warranty with the manufacturer.
Not surprisingly, it gives 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, 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, quoted directly from this manufacturer’s Technical Bulletin:
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Monthly documented physical inspections to determine:
-
If there are any areas of excessive wear or physical damage to the coating system.
Semi-annually documented physical inspections must include (but are not limited to):
- … and the section went on to list the various items that must be checked.
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The fine print in the footnotes for #1, the monthly inspections, requires a written inspection log indicating times and dates of inspections and identity of the employee performing the inspection.
For #2, the semi-annual inspection (hold onto your chair!) requires “Photograph or videotape the deck coating system and provide copy to manufacturer within twenty days of inspection.”
An association reading this requirement should probably feel as if 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 he or she will collect one dime from a manufacturer without spending quite a bit on attorney’s fees.
The sun burned this urethane deck for several years.
Reapplying sealer as directed would have prevented such damage.
Another requirement of deck coating manufacturers and many installers that will void your warranty is allowing the contiguous building materials to fail. That is, 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 manufacturers will resist being held responsible for that situation. Maintenance and repairs to contiguous materials are essential to maintaining your deck warranty.
The effect of these types of maintenance and warranty requirements is likely be that few lawsuits will be filed against manufacturers. Installers will (and need to be) held to higher standards for following installation instructions exactly and to disclose fully 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 inspections to maintain their warranties. Attorneys for manufacturers will get plenty of business writing tighter warranties and maintenance requirements, thus generating even more business for consultants and inspectors.
Associations are now on notice that they must follow the rules (ever-changing) 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 those associations that failed to maintain and inspect their decks rise dramatically. A small crack in a deck that might cost $500 or even $1,000 to get repaired properly, if left unrepaired for several years, ends up costing $5,000 to $10,000 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 become 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 a manufacturer’s warranty and maintenance requirements need to be implemented into association documents, and specific disclosures should be made to the association during the transition when the association is turned 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 showing up at a job and slapping down materials. They need to become very familiar with the work done by other trades and review that 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. He or she will end up holding the bag for a failed deck.
Associations will have to maintain their decks as specified or suffer the consequences. If the maintenance instructions say that the deck must be resealed every 3 years and the association fails to do so, the installer and manufacturer of that product will then be free from liability if the deck fails.
An association must inspect its decks according to instructions, CC&Rs or warranty requirements, and it must maintain a log of deck inspections. The burden of proof for defects is now squarely on associations and failure to maintain will void their warranties.
Bill Leys is the principal at Waterproofdeckcoatingadvice.com, an ECHO-member company that offers consulting and deck inspection services to HOAs. He is a former association manager, has written a number of articles about deck coatings and their care, and has spoken at seminars sponsored by several organizations.