Code Attorney

If your building department is investigated by the grand jury, you have big problems.  Oakland, California’s building services department was the subject of a a grand jury report that blasted it for deficiencies in the areas of the abatement process; policies, procedures and training; information, communication and data management; due process (notices, liens, fees and fines); contracting; and appeals. Mercury News reported that:

The final report included several examples in which liens were recorded before issuing an abatement notice and before the property owner had a chance to respond or appeal the blight abatement order. The liens ranged from hundreds to tens of thousands of dollars and often had no relation to the actual costs of unpaid fines or abatement work.

The Mayor said that the department is undertrained and understaffed.

This is why continuing education is so important.   If people aren’t properly trained, they will eventually violate someone’s constitutional rights thereby subjecting themselves and the municipality to civil rights lawsuits and other charges.

The creator of Phonehenge, a collection of oddball structures I’ve previously written about, has been sent to jail for disobeying a court order to demolish the buildings which were built in violation of numerous codes.  Contempt of court is a useful procedure that is used when a person disobeys a court order.  The court usually imposes a fine or jail until the person complies with the order of court.  This is probably the most powerful tool that exists to force defendants to comply with the code.  While I have filed many petitions for rule to show cause why a defendant should not be held in contempt of court, very few people have failed to comply and a tiny amount have actually been jailed.  Just the threat of going to jail is usually sufficient to inspire a defendant to comply. Mr. Fahey, the defendant in the California case, has been defiant, according to the court.  Defendants can be jailed for violating court orders even though jail time is not a possibility for the offense itself.  Contempt requires a separate procedure from the code violation.

I’m sure that many building inspectors don’t give themselves enough credit for the important job that they do, making sure that structures meet the standards of the building code.  Because of this important task, homeowners don’t think much about the safety of their homes. A couple in Southborough, MA weren’t so fortunate.  The Metrowest Daily Newspaper reports that after buying their dream house they discovered that:

The garage was too small to fit their car. Weeks later, water began flooding the basement. Over time, doors couldn’t be shut, and floors started creaking. The Culleys didn’t know it, but their house was shifting.

Now the couple and their lawyer, Michael McLaughlin of Boston, say the house was built illegally on top of poor-quality fill material, and because the soil is shifting unpredictably, the structure is sinking into itself. To make matters worse, a retaining wall they say used to run in a straight line along the rear of the property is failing, slithering across the edges in serpentine fashion.

The builder didn’t even own the land when he took the couples’ deposit.  The couple contended there were never any real building plans.  The state Department of Public Safety’s Board of Building Regulations and Standards, found 22 building code violations.  A temporary certificate of occupancy was obtained fraudulently.  The engineer who signed a statement which said that the house had been built properly reportedly received $100 to do so but had nothing else to do with the project. There was no permit for the retaining wall.  In a deposition, the building inspector admitted that he didn’t issue a cease and desist order when he discovered work had been done without a permit and he admitted he was never given any building detail design data.  While a jury awarded the couple $1 million in damages, the judgment was set aside by the judge.  It appears that the couple will be appealing.

The Chicago Tribune has a very good article about how vacant properties (due to the foreclosure crisis) are decimating poor communities because of the increase in crime.  This is something that I speak about at length when I teach my class on the relationship between law enforcement and code enforcement.  These vacant buildings are crime magnets and can’t be torn down quickly enough. Vandals steal everything and anything from these buildings so people who might want to invest in and rehab them walk away in frustration.  The remaining residents live in fear as the neighborhood gets even worse.  It’s a pretty depressing tale but important to know about.

Building officials are constantly trying to get people to get permits for structures built without them.  This becomes tricky when the construction occurred decades ago.  In Austin recently there was a crackdown on illegal carports.  Many of the owners didn’t own the properties at the time the illegal work was done.  This is always a problem because when the construction occurred years ago, the statute of limitations has run and the current owners can’t be charged with working without a permit.  If a structure was built contrary to the building code, there might be the possibility of charging the owner with occupying a structure without a certificate of occupancy.  Most towns try to get voluntary compliance, even waiving fees.  The goal is to make sure the structures are safe and code compliant.  But, when there is a widespread enforcement action, local officials should expect forceful opposition from homeowners.  When I encounter a problem like this, I like to do an education campaign first.  My recommendation is to notify the owners of the problem but explain why compliance is important for their sake.  I’ve found that this approach often gets compliance for 90% of the illegal structures.  It shows the court that you’re reasonable and that you’ve tried everything before starting enforcement action.  You’ll always end up with some people who don’t believe anyone can tell them what to do to their property but, thankfully, they are in the minority.

What if an unlicensed contractor does work  and then the  homeowner decides not to pay the entire bill?  How do the courts treat such a situation?  If you’re in Hawaii, the courts won’t help you.  Hawaii state law provides that:

§ 444-22 Civil action. The failure of any person to comply with any provision of this chapter shall prevent such person from recovering for work done, or materials or supplies furnished, or both on a contract or on the basis of the reasonable value thereof, in a civil action, if such person failed to obtain a license under this chapter prior to contracting for such work.

In Jones v. Phillipson, 92 Hawai”i 117, 987 P.2d 1015(1999) the court decided that while the unlicensed contractor could not sue a homeowner, the homeowner could sue the contractor for breach of contract.  Consequently, it’s foolhardy to risk being unlicensed because in addition to getting charged by the local jurisdiction, the contractor may not be able to seek court help in enforcing a contract.

Thirteen percent of U.S. homes are now vacant according to a new report in the Huffington Post.  Prices are dropping but people who have the money to buy are reluctant to enter the housing market fearing prices will drop even more.  I think we’d hope that by now things would turn around but I’m not seeing much change in the areas around the country where I do seminars.  I’m very concerned about properties that still appear to be owned by individuals but that the lenders actually own.  Recently I was researching a property that the former owner told us he turned over to a lender last summer.  He was right.  We didn’t know though because the lender had never filed the necessary paperwork with the Recorder of Deeds.  Consequently, all notices of violation went to him and not the lender.  Whether this was an oversight or intentional, I have no idea but it sets us back even further in identifying the responsible party.  I’m also seeing a number of judgments for foreclosure where the sheriff”s sale has never taken place.  Sometimes this is due to a bankruptcy being filed but in other cases it remains a mystery.  This is why ordinances to make lenders responsible for the upkeep of the vacant property prior to a foreclosure judgment are so critical to preserving neighborhoods.

There’s a bill pending in Illinois which would allow local governments to pass ordinances that would make lenders responsible for the upkeep of vacant properties in foreclosure.  Needless to say, the lenders are fighting the bill.  They’ve proposed a $50 fee per foreclosure that would go into a pool that local governments could draw from to reimburse themselves for their costs.  $50 per property, hmmmm, that’ll go really far. Maybe it’ll cover half a lawn being cut, once.   They must really think we’re stupid.  I’m disheartend that when I contacted my state rep, I received a nice “thanks for your e-mail” message, completely ignoring the expertise on this issue I’ve developed.  The banks say that they just wouldn’t be able keep up with all of the municipal ordinances that might be passed; maybe they would then know what it’s like to be an inspector who is desperately trying to reach a live human being at a lender when a property has 6 feet of water in the basement of a vacant home under foreclosure.  I wish I wasn’t so cynical about the political process.  I wish I believed it was possible that politicians would do the right thing and help local government preserve neighborhoods.  I want to believe that if they only knew about the problems we face, they’d give us some meaningful tools.  But, if they ignore our attempts to educate them, how can they make an informed decision?

Building officials are dealing with structures that have not been completed within a reasonable amount of time.  Many of these situations arise because of the financial problems of the owner or contractor and sometimes these projects are begun by weekend warriors who never have the time to finish the project.  Shorewood, Il. building inspector, David Meyers, shared the ordinance his town has used to try and deal with this problem:

1. New Construction Permits; Residential Dwelling Units:

a. All work must commence within six (6) months of the issue date of the permit. If work has not commenced within six (6) months, the general contractor may request that the original permit be extended by ninety (90) days. The request shall be made in writing and include an explanation for the delay. All extension requests should be submitted to the village administrator.

b. The dwelling unit is required to be completed and successfully pass a final inspection by the building inspector within twelve (12) months from the issue date of the permit. If the dwelling unit is not completed within twelve (12) months, then the permit applicant must reapply for a new permit. The reapplication cost will be based on fifteen cents ($0.15) per square foot of the dwelling unit.

Construction of the dwelling unit must be completed within two (2) years from the date the original permit was issued or court proceedings will commence.

2. Other Permitted Construction:

a. Additions to residential dwellings shall be completed within twelve (12) months. If work is not completed at this time, the applicant must reapply and pay a permit fee that is fifty percent (50%) of the original permit cost.

b. All permits, other than those listed in subsections C1 and C2a of this section, shall be completed within six (6) months of the time of issuance of the permit. If the work is not completed at that time, the permit holder must reapply for the permit at fifty percent (50%) of the original permit cost. (Ord. 98-894, 2-24-1998)

The above ordinance at least sets some limits on how long a building permit stays open.  When a project has an expired permit, I encourage inspectors to use the International Property Maintenance Code to address problems on the property.  This will usually inspire the owner or contractor to renew the permit and complete the project.  If this doesn’t work, we may have no choice but to file a demoliton suit so the unfinished structure does not remain an eyesore.

I recently completed a 2 month period of travel all over the Midwest doing trainings for building officials, fire inspectors, property maintenance and housing inspectors and law enforcement officers in Columbus, Ohio, East Liberty, Iowa, South Bend, Indiana, Troy, Michigan, East Peoria, IL and Sheboygan, Wisconsin.  All of them are facing challenges because of the foreclosure crisis and are trying to respond with reduced resources.  I want to say how much I appreciate the hospitality I received wherever I went and the enthusiasm of the participants.  It gives me great hope when I see the number of inspectors who take the time to come to the classes I teach so they can enhance their skills and keep trying to improve their communities.  At a time when so many public employees are feeling unappreciated and under attack, I just wanted to extend my thanks to everyone who made my trainings a rewarding experience.