I’m recently back from the Region III conference in Brooklyn Park, MN put on by AMBO. This year I stayed an extra night courtesy of Mother Nature (my Southwest flight was cancelled due to the snow storm in Chicago) but it gave me a chance to visit with a great group of people. One of the things that really impressed me is the difference between laws in a state like Minnesota versus those in my home state, Illinois. Inspectors in Minnesota have more tools at their disposal in dealing with the foreclosure crisis because of their ability to clean a property up and collect the costs on the property’s tax bill. In theory, Illinois inspectors can do the same thing but the way the 2005 law is written makes it so convoluted that I don’t know anyone who has been successful in collecting any money this way. Putting a lien on property isn’t sufficient. Years may pass before the property sells or the lien may be wiped out by foreclosure proceedings depending on local law. What is the difference between states? I believe Illinois is in the grip of special interests that defeat bills that would make it easier to get property cleaned up and help local jurisdictions recoup their costs. Being able to collect municipal expenses on next year’s tax bill for a problem property with a process that is simple and direct is a terrific tool that I wish I could use in my practice. It would eliminate the helplessness inspectors experience during the gap period, from the time the homeowner walks away from a property and the time the lender takes title. I envy my Minnesota colleagues.
I recently did an all day training for the Illinois Fire Inspectors Association and I found myself talking about using multiple codes for violations. Fire inspectors often work with both the IFC and the Life Safety Code and have to decide which one to use. I find that the IFC has superior administrative provisions and gravitate towards it for enforcement. The Life Safety Code is a great code to follow when something is being constructed. Beyond that, I sometimes find that using the IPMC is helpful when dealing with a problem property because it has very specific sections on the condemnation of unsafe buildings, structures and equipment. In some jurisdictions, the building department writes the violations for the fire department or fire district. In those cases, I’ve often seen the inspectors use Chapter 7 of the IPMC for fire code violations since it’s fairly comprehensive for common fire safety violations. Ultimately it doesn’t matter which code you use as long as it’s appropriate to the situation and it meets the local requirements of your jurisdiction and state. Being flexible is important because you may find that you hit a dead end using one code but the solution lies in another. When I wrote the guide books for the IBC, IFC and IRC, I included a chapter on using the IPMC when unsafe structures were involved. The IBC and IFC have some guidance for unsafe buildings but not to the point of condemnation. The IRC has nothing about unsafe structures. Now that there are many half-built single family structures standing around, this becomes a problem since the IBC doesn’t apply to them. I usually recommend using the IPMC (if you have adopted it) if the permit has expired. If you don’t hve the IPMC, you better have a decent public nuisance ordinance. Otherwise, the only alternative is a demolition lawsuit which in most jurisdictions can be a costly procedure.
The earthquake tragedy in Haiti is a reminder of what can happen when there are no building codes or the existing ones aren’t enforced, when there are no building inspectors or a lack of oversight. The sight of collapsed schools, government buildings and residences is heartbreaking. I recently had a call from an inspector who said that his local jurisdiction was considering writing its own code instead of following the IBC because contractors were complaining that it cost too much to build following the IBC. Given the economic circumstances, they wanted a “less strict” code. Every time we sacrifice safety for monetary gain we are hoping that disaster doesn’t strike and reveal the dark side of less restrictive enforcement. Poorer countries lack the luxury of regulation and we can understand how things like this happen but we shouldn’t forget our homegrown tragedies like the collapse of the Hyatt walkway in Kansas City. We keep making the same mistakes because we forget what history teaches us. What happened in Hait is not a surprise. Newspapers recounted the collapse of schools in Haiti in 2008 due to poor construction. In 2007 the Department of Sustainable Development of the Organization of American States was approached about working to bring about a national building code in Haiti. You can read more about this problem at http://www.cnn.com/2010/WORLD/americas/01/12/haiti.earthquake.infrastructure/index.html or watch Earthquake in Haiti.
Sometimes a building code official may become a defendant in a mandamus action. A mandamus action is a lawsuit wherei nthe plaintiff tries to compel a governmental official or entity to perform a duty, such as issuing a building permit that has been wrongfully withheld. A recent case out of Minnesota, Pigs R Us, LLC v. Compton Township, 770 N.W.2d 212(2009,
describes a mandamus action where a township revoked a building permit that had been properly issued for a swine facility. The owner filed a second application that was not processed and the township passed an interim zoning ordinance that required the facility to have a special use permit. The owner filed a mandamus suit to compel the township to issue the building permit. Mandamus by definition only applies to non-discretionary acts. Issuing a permit is a ministerial act so the Court ordered the Township to issue the permit because the plaintiff complied with the law in effect at the time he filed it. It also found that the township had acted arbitrarily in passing the new ordinance. The township officials tried to claim that they were immune from the lawsuit but the Court found that the Municipal Tort Claims Act applied only to tort actions and not mandamus actions. The case was sent back to the lower court to decide if damages should be awarded in this case. Building code officials must always be aware that if they fail to perform a ministerial duty, a mandamus action is possible. This case demonstrates that the building code official cannot always rely on qualified immunity to get him or her dismissed from a lawsuit which is what the township board members sadly discovered.
Once again, I’m thanking Kelly Anbach, inspector for the Village of Hinsdale for finding out about a new program. Detroit is working with lenders to keep foreclosed homes occupied with a special program, ROOF (Retaining Occupancy On Foreclosure) whereby former owners of these homes are allowed to stay in them if they pay for the utilities, a fee tied to their income and other costs. When the homes are sold, occupants can receive refunds of up to 50% of the monthly fees they have paid, if they have maintained the property and moved out on time. This sounds like a great way to keep the maintenance up on the property until a new owner takes over. You can read more about it at: http://www.freep.com/article/20091122/COL06/911220515/1322/Detroit-program-to-keep-people-in-foreclosed-homes
Commercial building foreclosures are going to be a big problem in 2010. Many communities already have these “zombie” buildings which were built during the good times but have stood empty or half-built. In some situations, inspectors I work with are going forward with demolition lawsuits or condemnation. Others just remain empty hoping for better days. This link contains an interesting video on the problem. http://www.huffingtonpost.com/2009/11/20/zombie-buildings-are-they_n_365400.html
Too often purchasers of property do not do their due diligence to check for potential problems with the land or the building. This seems to happen quite frequently when property is located in a flood plain. I’ve had cases where people build bridges over creeks without a building or storm water management permit, use a bulldozer to move dirt around without a grading permit or buy property at a tax sale that later turns out to be a retention pond. Of course, they want a permit to build on their new property. In a case from Louisiana (Lafleur v. Blue, 6 So.3d 348(2009)), a purchaser learned the hard way that he should have investigated the property more thoroughly. After owning property for a number of years, he decided to sell it. However, a potential buyer discovered that it was in a floodway. Up until that point, the owner, failed to do his research. He then sued the local government agency for not indicating on the plat that part of the lot was in a floodway. The plat did show the lot was in a flood zone. The court said the owner should have researched the property “a little more” and decided against him.
People who purchased houses with Chinese drywall (the kind that has been linked with a rotten egg smell and corrosion) are running into a problem when they file a claim with their homeowners insurance companies. Many of the companies are denying the claims because it’s considered a building defect and then canceling the policies until the problem is fixed. Because people need to keep insurance on the home as a condition of the mortgage, this could cause them problems with their lenders. It’s a sad situation, especially in this economic climate. You can read more about it at http://www.comcast.net/articles/news-national/20091015/US.Chinese.Drywall/
I had a wonderful trip to Colorado recently teaching Advanced Legal Aspects for Building Officials (and my husband and I took some time to go sightseeing). One of the building official’s told me that in the area he was from, roofing contractors had swarmed through a neighborhood hit by a tornado. The contractors wrote down the addresses of the homes that obviously needed repairs because of the storm. The contractors then went to city hall and pulled permits without the knowledge of the homeowners. The contractors would go the owners saying they were ready to begin work and had the permit in hand. If the owners refused to allow them to do the work, the contractors would try to get their money back from city hall. It’s important to remember that a permit is given to a contractor because he or she is the agent for the owner of the property. The local jurisdiction can an
d should require proof of that agency to avoid this type of outrageous behavior. This can be achieved by having the owner sign the permit in addition to the contractor or by requiring a copy of a signed contract as part of the permit application.
There’s a sad tale from Jacksonville, Florida about a woman who was found dead under 8 feet of trash in her home. http://abclocal.go.com/ktrk/story?section=news/national_world&id=7054060 The rescue workers had difficulty locating the body because of the trash. There’s an ongoing debate about how aggressive inspectors should be in enforcing the property maintenance code for interior violations. Should a person be allowed to live in a “trash” house if he or she is not harming anyone else or should inspectors seek compliance against the wishes of the occupant? I think this case points out the dangers of ignoring these kinds of cases. As I’ve said before, I’ve had some success by having the court issue an order for a cleanup with an inspector monitoring the progress. Don’t we have an obligation to use the law to help people who because of a hoarding disorder can’t help themselves?
