Code Attorney

When dealing with unsafe buildings, code inspectors shouldn’t forget to consider whether criminal charges might be appropriate.  A builder in Pennsylvania was recently charged with theft, deceptive practices and other related offenses.  Montgomery Media reported that:

“According to articles in a local daily newspaper, the breadth of shoddy workmanship was staggering: The building had exposed electrical wiring, fire escape stairwells built of wood instead of the required steel, stair landings were constructed of particle board, the sprinkler system was inoperable, concrete block walls held together solely by mortar joints, and a garage wall had cracked concrete blocks, and other structural deficiencies were found by inspectors.” http://www.montgomerynews.com/articles/2010/10/27/springford_reporter_valley_item/news/doc4cc1fe499a784668359492.txt

In criminal cases, the judge can set specific requirements as a condition of probation that may aid the inspector in getting compliance with the code.

There was an interesting article in the Chicago Tribune about the difficulties homeowners and businesses encounter with local jurisdictions when they want to use green technology, such as installing solar panels.  Many jurisdictions are not prepared to address those requests because their codes have not kept up with the technology or inspectors don’t have the  experience to do inspections in this area.  Owners complain about increased costs because of the care local jurisdictions are taking before these installations are approved (e.g. hiring an engineer).  Eventually as this type of innovation becomes more mainstream, these problems should decrease.  You can find the story at http://www.chicagotribune.com/classified/realestate/ct-mre-0926-solar-energy-hurdles-20100924,0,6693743.story

One of the greatest sources of satisfaction in my work is helping inspectors achieve observable results, e.g. the roof that gets fixed, the yard that gets cleaned up, finding the right owner to charge.  Consequently, when I have difficulty reaching a goal, I get very frustrated.  I can think of few situations that are more difficult to deal with than when I am dealing with an occupant or owner who appears to be suffering from a mental illness.  All of the normal carrot and stick approaches don’t work, i.e. fines, court orders, contempt of court.  Unfortunately it’s difficult to tell which came first, the illness or the lack of maintenance.  I recognize that many hoarders suffer from OCD (obsessive compulsive disorder) and others are dealing with bipolar disorder or schizophrenia.  Rational conversations are not often possible.  Many of these individuals also lack family support, sometimes because their behavior has driven away the very people who could help them.  While neighbors may be sympathetic (unless the person’s behavior has antagonized them as well), there comes a point where the neighbors just want the problem fixed.  Many are willing to help the offender but usually the offender doesn’t want anyone to help them or doesn’t even recognize the problem.  (Again, this may be due to the illness when paranoia is part of it).  I’ve written in the past about my success with hoarders, bringing them into court and working closely on a schedule to bring the property into compliance.  Most hoarders I’ve dealt with though haven’t lost touch with reality. It’s people who are somewhat delusional that are such a challenge. Sometimes the police can help if the person is a danger to his or herself or others but that’s the standard for involuntary commitment in my state and most mentally ill people don’t qualify.  An alternative is a guardianship where a petition is filed with the court asking it to appoint someone to make the day to day decisions for the ill person because he or she is not competent to help his or herself.  However, there has to be someone willing to file the lawsuit and take on the responsibility for the person’s care.  I don’t think we can ignore problem properties by not issuing tickets for violations just because the offender is mentally ill.  A sympathetic inspector who can gain the trust of the offender can get results by closely supervising the person’s progress.  I’ve sometimes seen a person’s mental state improve as the residence looks better.  If anyone out there has a magic solution, I’d love you to share it with my readers.

I recognize that hoarding cases can be extremely time consuming to deal with and difficult for a property maintenance inspector because the person the inspector is dealing with is not rational about the state of the inside of the residence but I don’t think that’s a reason to do nothing.  A woman died in her home in Skokie, IL and the only way to get her was to cut a hole in the roof in this story reported today.  http://www.dailyherald.com/story/?id=395161 I had a case last week where the defendant pleaded guilty (he doesn’t even live in the home anymore but stays in an extended stay hotel due to the condition of the house) and the judge ordered him to remove the rubbish within 30 days.  I had a picture of a dumpster on the property with just a small amount of items in it to show he hadn’t made much progress.  The defendant said he couldn’t possibly do it within 30 days because of his physical condition.  After quizzing him, the judge determined that he had the financial resources to hire someone to do it for him.  Then the defendant argued that that wasn’t possible because that person wouldn’t know what to keep and what to throw away.  The judge told him that he could do that by being the manager of the rubbish removal and he could give directions to the hired help.   The defendant still protested but we’ll see next month if progress has been made.

The blog has been silent for awhile because I was on a wonderful vacation in Japan (more on that later).  But, while I was away, I had an interesting comment from Mark Gilligan regarding alternative materials.  He’s given me permission to post his remarks because he’d really like to bring this issue up for discussion.  Here it is:

I would appreciate comment on what I see as problems associated with the use of products that are not addressed in the building code that are used in building projects.  Many of these products are ubiquitous in that they are regularly used on projects.  In many cases product evaluation reports are accepted as de facto code provisions by both design professionals and building officials.  While this issue is most blatant in California my understanding is that the troublesome practices also occur in the rest of the country.

These products are considered as alternate materials and means of construction and are addressed by Section 104.11 of the 2009 IBC which requires that the building official approve their use.  I believe that there are a number of legal difficulties related to common practices that could result in much mischief.  Some of the problems include:

·         In, I would suggest, almost all cases when the building official is aware of the products and accepts their use on projects the building official does not formally indicate his approval of the use as required by the building official.  Without this formal approval the use of the product would be considered a deviance from the building code.  Thus if at any time there is a problem associated with the use of these alternate materials or means of construction the design would be considered to be in violation of the code.

·         Many building officials have adopted a policy that they will automatically accept ICC-ES evaluation reports as evidence of code compliance for alternate methods of construction.  Besides abrogating their non-delegable duty to approve the use of the products to a private entity, this policy effectively amends the building code.  While “Legal Aspects of Code Administration” page 20 talks about a minimal distinction between granting approval of an alternate product and amending the code, I believe that such practices totally ignore any such distinction.

·         The insistence by many building officials that they will only accept ICC-ES evaluation reports as evidence of code compliance creates a situation where the building official is in effect creating an unfair advantage in favor of evaluation reports produced by ICC-ES.

Because these practices are so widespread sorting these problems out will be messy.  The problems are made more difficult because the use of alternate products is so widespread.  Complying with the regulations would make more work for the building officials.  Many product manufacturers have a lot invested in the de facto code status of evaluation reports.  In addition the inability to rely on evaluation reports as proof of code compliance could create difficulties for the Owner and his consultants.

I believe that long term solution is to develop consensus standards for these products that focus on performance characteristics and not proprietary details.  These standards would then be adopted into the IBC thus removing the need for the building official to approve the use of the products.

I would suggest that this is a classic situation where the standard practices that have been adopted by a segment of society are in conflict with the laws and regulations.

There is a very disturbing report, The Multifamily Housing Market  and Value-at-Risk Implications for Multifamily Lending, just released by DePaul University’s Institute for Housing Studies regarding the impact of recent property price declines and foreclosure on multi-family housing mortgages in Cook County, Illinois.  The study found that 42% of small rental buildings (2 to 6 units) are in danger of default because they are upside down on their mortgage debt.  The study said that if the trend is similar across the nation, it would be on par with the subprime mortgage meltdown.  In Cook County, the property value of small rental buildings have fallen to 46%.  Few lenders want to provide financing for these types of buildings leaving only Freddie Mac and Fannie Mae as lenders of last resort. For many owners, the income from their buildings are less than the operating expenses.  Here’s what’s of concern for local jurisdictions:

The point, in any case, is that a significant amount of disinvestment could occur in this environment, particularly in
those markets where the housing inventory has been vastly overbuilt. The usual argument is that negative equity
and declining rents will fuel foreclosures, which in turn will force down multifamily property prices, setting off a
downward spiral, particularly if credit is tight and lenders (including Fannie Mae and Freddie Mac) are unwilling
to make loans. A side implication, of course, is that, other things equal, as rents decline, the quantity of space
demanded should increase. But where there are requirements that multifamily units meet some minimum building
standards, investors will generally find operating these units financially infeasible when rents fall below this
operating cost threshold level. Thus, at or below this point the property will generally be vacated or abandoned.

You can download the entire report at http://ihs.depaul.edu/ihs/

One of the best ideas I heard at the OBOA/MVBOC joint conference was during a discussion on what constitutes exigent circumstances.  A building official said simply, “I know I have exigent circumstances when the Fire Marshall or engineer won’t go into the building to discuss the matter.”  I thought that was a very good rule of thumb because it’s more than an intellectual exercise.  It reminded me of a Justice Potter Stewart quote (he sat on the U.S. Supreme Court).  In trying to define pornography he said that he couldn’t define it but he knew it when he saw it.

The Vacant Property Toolkit from the Business and Professional People for the Public Interest is finally ready and posted on its website at http://www.bpichicago.org/VacantPropertyResources.php  I’ve written about this organization’s work in the past to address this very important issue and the Toolkit is a great starting point for any agency trying to deal with the problems presented by vacant and abandoned property.

This is by far the most creative conversion of a structure into a residence I’ve ever seen.  It’s a pool!  Can anyone top this?

Calling all inspectors.  Help me help a prosecutor decide what violations this picture contains

Up on a Roof

.  The person is storing tires on a roof and says they’re planters.  Illegal outdoor storage may be one violation but I’m looking for something creative