Having the support of the judiciary is critical in obtaining compliance. I’ve been very fortunate in my career to have judges who really understand how important code enforcement is in maintaining communities. Usually when a judge is new, he or she knows little about code enforcement (it is a very narrow area of the law). I view my role as trying to educate them on the issues and the law as I prosecute my cases. Once they see that the inspectors and I are trying to fairly enforce the code for the good of the neighborhood, they are usually supportive and listen closely to my recommendations. Recently, a judge in Ohio chastized a violator, fining a corporation $129,000 for property maintenance violations in an apartment complex. http://www.middletownjournal.com/news/crime/complex-hit-with-129-000complex-hit-with-129-000-in-fines-1023227.html The judge said
“I’m embarrassed and ashamed these conditions exist in the city of Fairfield … We build housing in Haiti, in Africa, but in my own backyard, we have people living in filth. It’s disgraceful and it makes me sad that the working poor don’t have a better place to live.”
Too often it is the working poor who suffer when landlords don’t keep up their property. Judges play a crucial role in righting this wrong.
When there is a business in town that is a problem for the police, there’s an excellent chance that it’s also a place with fire and building code violations. In Petersburg, VA a man was shot at a business where the occupancy of the building was 100 more persons than it should have been. http://www2.timesdispatch.com/news/local-news/2010/nov/30/pete30-ar-683770/ In the 2 years the business was open, it was cited 9 times for violations of the fire, safety and building codes. Many of the violations were for overcrowding. When I teach my class on the relationship between code enforcement and law enforcement, I explore how effective enforcement of the building and fire codes can reduce crime. My next class is January 7, 2011 at the College of DuPage in Glen Ellyn, Il. Many of these crimes can be prevented by being vigilant in our enforcement of fire code regulations, especially at entertainment venues.
Sometimes the best thing that can happen to a problem property is for it to be sold. If the local jurisdiction is operating under the International Property Maintenance Code, the seller must inform the buyer of the code violation notices he or she has received pursuant to Section 107.6 and the buyer must accept responsibility for fixing the violations without reservation. A sworn statement to this effect must be given to the code official of that jurisdiction. If the new buyer goes into the deal with a plan of action, the code official rarely has to take enforcement action against the new owner. This used to happen all of the time to problem properties where I was prosecuting the owners prior to the housing market crash. It’s harder given the economic situation now, but, a savvy buyer can obtain a distressed property at a price where he or she can still make a profit.
In a recent post, I discussed the foolishness of owners who don’t fix their rental property and end up facing civil liability judgments that could have been avoided if they had just followed the fire code. The family of a victim of a porch collapse just reached a settlement for $2.7 million dollars in Chicago. http://www.suntimes.com/news/metro/2931482,CST-NWS-porch1130.article The victim was trying to adjust a chair on the porch when he fell through the rails. The Sun-Times reported that:
Through evidence discovery and motions, it was learned that almost six months prior to the incident, KMC’s liability insurance carrier warned the company that the large railing gap — 2 feet by 8 feet — should be covered with wire mesh, a release from attorneys said.
By the time of the tragedy, the repairs had not been made. The public doesn’t really understand how code enforcement saves lives and reduces costs to owners. A case like this demonstrates its importance.
What do you do with a person who never quite finishes a building project? Recently I had an inquiry from a building inspector regarding a situation where the person has obtained building permits on and off for years but has never finished the job. The neighbors are tired of looking at the unfinished builidng. It’s not unusual for the excuse in court to be, “I’m busy and can only work at it on the weekends.” If a reasonable amount of time has gone by without the completion of the work and the permit is due to expire, the building official may wish to add conditions if he or she is going to extend the permit. If the work still isn’t completed, maybe the permit shouldn’t be extended. If the permit expires and there are code violations on the property, they are subject to a notice of violation and an order for compliance. A court might order completion over a specific period of time as a condition of any sentence. The longer the buiding official allows this type of a situation to continue, the more difficult it will be to obtain compliance.
Once again a building has collapsed because the building code was ignored. 65 people were killed when a building collapsed in East Delhi, India. http://blogs.wsj.com/indiarealtime/2010/11/16/qa-how-safe-are-buildings-in-indian-cities/ India has a national building code but it is up to the local jurisdictions to implement it according to Virendra Kumar Paul, head of the department of building engineering and management at Delhi’s School of Planning and Architecture. In an interview with the Wall Street Journal he says that there is a lack of concern among authorities, building owners, engineers and management. Some buildings are constructed without a building permit or without any regard for the building codes. When I teach Legal Aspects of Code Administration, I discuss the cycle of complacency and outrage. Human beings throughout history have reacted strongly to large tragedies, adopting stronger codes, stepping up enforcement, etc. However, complacency sets in and the codes are ignored or weakened in the interest of expediency until the next tragedy. Then, the cycle continues until another building collapses.
The cycle of complacency and outrage
Buyers of any type of real estate, residential or commercial, should always have the property checked out by a competent inspector who is familiar with building and fire code regulations. Most buyers can’t recognize less obvious building, property maintenance and fire code violations and could end up having to put thousands of dollars into a property after closing the sale. Under the International Property Maintenance Code, sellers aren’t supposed to transfer property for which they’ve received compliance orders without notifying the new owner of the order and obtaining a signed and notarized statement, signed by the new owner, acknowledging receipt of the compliance order and accepting without condition responsibility for making the corrections or repairs required. (Section 107.6) However, most property owners have never received a notice of violation because the problems are in the interior of the building and the local jurisdiction’s inspector has no way of knowing they exist. When I represented clients purchasing property, I always told them to obtain a home inspection (making sure such requirement was part of the contract) and then insisted that any code violations revealed be fixed by the seller before closing or that my client be given a credit for the cost of repair. If a seller refused to fix the problem, the buyer had the option of cancelling the contract pursuant to the conditions set forth in the contract. People try to save money by not having a lawyer when they buy property. However, this is the time when buyers could end up spending more money than they ever expected if they don’t have proper representation.
Every time I hear that a jurisdiction wants to weaken its building code to placate local developers, I shake my head in disbelief. We forget that modern building codes prevent tragedies. On Saturday, a 7 story apartment building in Bangladesh started tilting drastically into a 17 story building nearby. A report from that area states that:
The foundation of Kathalbagan building which was constructed on a filled up pond was required to reach a depth of 65 feet below the ground. But the developer found it convenient to carry out piling work up to a depth of 25 feet.
(You can see a picture at http://www.thedailystar.net/newDesign/latest_news.php?nid=26902 We need to remind our local officials that these types of tragedies rarely happen because we have strong building codes.
It always disheartens me when an important rental inspection ordinance encounters opposition. Based on personal experience, I am convinced that a well executed ordinance can prevent buildings from becoming blighted and can protect tenants from negligent landlords. I was recently reading about a town that adopted a less stringent rental inspection program. http://adirondackdailyenterprise.com/page/content.detail/id/521399/Village-adopts-milder-rental-inspection-plan.html?nav=5008 The town decided not to make owners register rental property. The problem with this approach is that the most effective rental inspection programs require that the owner has a license or permit to rent the property. If the property does not meet minimum code standards, the property cannot be rented until the problem is fixed. Regular inspections are part of the program. If an ordinance is watered down, the inspector has to keep sending notices of violation and citations to the owner while the owner continues to collect rent from the tenant living in substandard conditions. While eventually, the court will order the owner to comply, those owners covered by a rental licensing ordinance seem to comply more quickly. Once landlords become used to a rental inspection ordinance, they tend to do a better job of making minor repairs so large ones don’t become necessary. An inspection program is often considered as part of a crime-free housing ordinance. I’ve been helping local governments understand the benefits of rental inspection programs by making presentations at workshops and board meetings. Sharing my experience with people who are concerned about reducing crime and preserving property values is very rewarding. As more and more owner occupied properties turn into rentals, strong rental inspection ordinances become vital in preserving the quality of life in a community.
Inspectors often get frustrated with how slow demolition suits proceed through the court system under their state statutes. Most states establish a a strict procedure that must be followed before a building can be torn down. Some local authorities adopt the International Property Maintenance Code as their ordinance. The IPMC contains Section 110 which describes the procedure to be followed when that code is used. The code official can order the removal of a structure that is so dilapidated as to be dangerous, unsafe, insanitary or otherwise unfit for human habitation. After the proper notice and order have been served, the code official can cause the structure to be demolished or removed if the owner fails to comply with the demolition order within a specific time prescribed and has not appealed the order. There is no involvement of the local court unless an appeal of the order is filed. One of the concerns that municipal attorneys have is whether state law preempts local ordinance procedure in these kinds of situations. A recent case in Illinois supports the position that a municipality is not precluded from using a procedure established by a local ordinance instead of the state statute where there is no language in the state statute that indicates it is meant to preempt the use of local ordinances. In Village of Northfield v. BP America, Inc., 342 Ill.Dec. 827(2010), an abandoned gas station was located on a parcel of property. The Village of Northfield issued a citation against BP America because the property was a public nuisance under its local ordinance. The local ordinance requires an abatement of the nuisance, including the possibility of razing the structure. When BP did not comply, the village filed a lawsuit against it and the court found it to be in violation and issued a daily fine. BP argued that it was not required to pay a fine because the local ordinance was preempted by the Illinois Municipal Code. The court found that BP was correct because the state law preempted the local ordinance. The Village of Northfield appealed the decision. The Appellate Court found that there is nothing in the state statute that specifically limits a municipality’s ability to regulate an abandoned building to the procedures provided for in that section of the Municipal Code. Therefore, the village nuisance provision was not preempted by state law. This decision only applies to Illinois cases, specifically in the First District, but courts in other states may look to it for guidance if such an issue comes before their courts on the same issue.
