Q&A. Re: Balcony Railings. Over the years, building codes keep reducing the allowable space between verticals. If legal spacing between verticals met the legal requirements in place at time of construction, do they have to be redone every time the code changes? (Insurance companies differ on Yes vs. No)

A. While all new construction is required to be in accordance with the Building Code in effect at the time of construction, there is no requirement that building owners upgrade existing construction to comply with changing codes.  That said, it is our opinion that even if a component in the community does not need to be brought to code, there are reasons it should be brought to code, i.e., safety. The primary reason building codes change is to enhance safety of persons.  In the balcony railing context, even if the balcony railings were built to code at the time of construction and thus are not required to be modified to comply with current code, an injured party could argue that an association should be liable for negligence under case law if someone is injured due to the widely spaced railings – even though the railings were “to code.”  Each case rests on its own facts, so it is difficult to speculate how a court will ultimately rule without  knowing the facts surrounding the event causing the injury.  Case law  (Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502 and Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895) essentially states that mere compliance with building codes is not sufficient to establish due care by a property owner.  If an owner requests to narrow their balcony railings or add protective barriers to the railings for safety reasons, the Board should consider this request in light of the above. Also as noted in the question, some insurance companies will require community associations to modify the railings or at least develop a plan and timeline for doing so.