During a recent presentation in Missouri, one of participants raised an issue that has caused problems in enforcement. He said that many judges and prosecutors insist that an individual be named as a defendant even when it was clear that an owner of the property was a corporation or LLC. Prosecutors prefer having an individual to prosecute so a warrant can be issued if the individual fails to appear for court. However, if an individual is named and is not the responsible party, a defense attorney can file a motion to dismiss the charges against him because the proper party is a corporation or LLC. I think that the reasons judges and prosecutors make this mistake is because they just aren’t familiar with prosecuting corporate entities. Even corporations can be charged with criminal offenses. Therefore, prosecutors need to refer to the criminal code to see what procedure exists in those types of cases. In my jurisdiction, we serve the registered agent and if no one appears for the corporation, we obtain a default judgment and eventually issue some type of process against an officer of the corporation to obtain compliance. It’s hard to change procedure when “that’s always the way it’s been done” but ultimately, to get results, you have to target the responsible party whether it’s a corporation or not. In fact, when you’re dealing with commercial or multi-family housing, it’s rare to have an individual as an owner because of the liability issues associated with such ownership.
I just returned from St. Louis and Kansas City, MO after teaching the Legal Aspects of Code Administration class. I came across an interesting article in the St. Louis Post-Dispatch about firefighters reconsidering going into vacant structures to fight fires given the risk to the firefighters. Here’s the link:
http://www.stltoday.com/stltoday/news/stories.nsf/nation/story/928FB8B217BCBA4E862575D8000A8315?OpenDocument
I’m a big advocate of vacant building registry so that the fire and police departments are aware when they go on a call that the building is not inhabited. We’re doing it in Hinsdale, IL and the response from those departments have been very favorable. In the town in which I was doing a consultation in Missouri, I was told that in one section of the municipality 12% of the homes were vacant. This makes is even more important to keep track of these structures. There’s no sense in someone getting hurt or killed for a building that has been abandoned and is worth little.
I recently met with an attorney who represents lenders to share information about our mutual concerns over properties that have been taken over by lenders. She gave me some good tips for inspectors who are trying to navigate this confusing area. She suggested that if you don’t have a contact with the lender begin with the Loss Mitigation Department. She said that banks really don’t want to own real estate and try to work with mortgage holders to readjust mortgages. She also said that it’s rare but sometimes a lender will ask the court for early possession if there are problems with the property that jeopardizes its interest. It’s always wise to inform the lender if you have special concerns prior to the sheriff’s sale, e.g. water in the basement, mold growth. Ultimately, getting results is all about maintaining relationships, that is, finding key people and developing ongoing relationships so you can be helpful to each other over time.
I am always surprised about the things people build without a permit. Recently in court I had a defendant who had built an addition without any permits. He couldn’t even claim ignorance because he was in the building trade. He then complained when the inspector saw that his deck had been built without a permit. The defendant’s excuse for that one was that he bought the house that way. In another case, the homeowners only hired subcontractors who wouldn’t apply for permits. One of the potential subcontractors asked too many questions, didn’t get hired and turned the owners in to the municipality. In my book, The Building Process Simplified, I discussed the trouble people can get into when they cut corners and don’t do their due diligence before they buy property. I only wish more people would read that chapter in the book before they begin construction. Given the current economic circumstances I’m suspect that more and more people are failing to get permits in order to save money. Inevitably this is going to lead to some tragic consequences.
