Code Attorney

When I am in court, my focus is on the safety of the building that is the subject of my prosecution.  I don’t know that I’ve paid that much attention to the effect that the problem with the property is having on the long term health of the residents.  It certainly has been a concern when there is an immediate hazard but otherwise I haven’t really concentrated on what the implications are to general health.  That is why it was wonderful to have the opportunity to meet professionals for whom this is a great concern.

Amy McLean Sales from the National Center for Healthy Housing spoke at the conference about the seven principles of healthy housing.  They are:

Dry: Damp houses provide a nurturing environment for mites, roaches, rodents, and molds, all of which are associated with asthma.

Clean: Clean homes help reduce pest infestations and exposure to contaminants.

Pest-Free: Recent studies show a causal relationship between exposure to mice and cockroaches and asthma episodes in children; yet inappropriate treatment for pest infestations can exacerbate health problems, since pesticide residues in homes pose risks for neurological damage and cancer.

Safe: The majority of injuries among children occur in the home. Falls are the most frequent cause of residential injuries to children, followed by injuries from objects in the home, burns, and poisonings.

Contaminant-Free: Chemical exposures include lead, radon, pesticides, volatile organic compounds, and environmental tobacco smoke. Exposures to asbestos particles, radon gas, carbon monoxide, and second-hand tobacco smoke are far higher indoors than outside.

Ventilated: Studies show that increasing the fresh air supply in a home improves respiratory health.

Maintained: Poorly-maintained homes are at risk for moisture and pest problems. Deteriorated lead-based paint in older housing is the primary cause of lead poisoning, which affects some 240,000 U.S. children.

These principles apply to many of the homes that have been the object of court cases I have handled.

Amy also showed statistics that communities of color are more likely to live in unhealthy housing. I would imagine a lot of the housing is rental property not maintained by the landlords.  I asked her about resources to help people in this economic environment to fix properties in need of repair but she is as frustrated as I am because of the lack of money available to help people who need assistance to fix a deteriorating property.  The grim reality is that if we don’t do something now, they will be the properties we will need to demolish 5 years or 10 years from now.

This week I was a speaker at the 2011 Lead Poisoning Prevention Conference in Springfield, IL that was about so much more than lead poisoning. It was really about healthy homes and covered a wide range of topics.  What I learned was so valuable that I will be writing various posts about it and adding new links to this site that contain valuable information. The conference was put on by the Illinois Department of Public Health, St. John’s Children’s Hospital, Kohl’s Department Stores and the Illinois Public Health association.

One of the ways that local jurisdictions are enforcing the renovation, repair and painting requirements of the EPA with regards to lead paint, is to refuse to issue a building permit to a contractor who is working on a pre-1978 residence if it does not qualify as an exception to the law unless the contractor provides proof of certification as a renovation firm.  I spoke with the inspector from Rock Falls, IL who follows this procedure.  He told me that under his code, he is responsible for enforcing federal, state and local statutes so he has authority to take this action.  But, before implementing this, he contacted a trainer who agreed to come out to Rock Falls and train, at a discount, any contractor who wanted to sign up for a weekend training. It was a huge success because it was convenient and the price was right.  He’s been able to get hundreds of firms qualified to do the work. This is a great example of a creative solution and I wanted to share it.  He says the program is running smoothly and he has very few problems.

One of the very unfortunate consequences of the economic downturn is the layoff of code enforcement personnel.  Peoria, Illinois is facing the layoff of about 1/3 of its staff.  I’ve had the good fortune of doing a number of training days in or near Peoria.  As with many cities, it struggles hard to prevent blight.  I fear a spiraling down effect in cities and towns where budget cuts leads to weaker enforcement which leads to more problems in neighborhoods that are already struggling.  The inspectors I work with are already doing as much as they can to deal with problem properties.  What will some of these towns and cities look like in 10 years because of the decisions we are making today?

NPR did a story yesterday on how some banks have decided to demolish foreclosed properties in Cleveland and give the land to local government for its land bank because it’s a way to save save the costs of servicing these properties with the added benefit that it helps stabilize the neighborhood.  The agreement was described this way:

The Cuyahoga County Land Bank, a quasi-government corporation, offered lenders a deal: We’ll take your worst houses, if you pay to knock them down. This year, Fannie Mae and some of the country’s biggest lenders — including Bank of America, Citibank and Wells Fargo — will help pay for half of the land bank’s 700 scheduled demolitions.

Based on what I’m seeing, it makes sense to demolish these residences sooner, rather than later.  I’ve seen homes open to raccoons and water damage that just keep deteriorating.  No one is ever going to buy them and fix them up.  With the banks sharing the cost of demolition in these circumstances, it becomes possible to stop the trend toward blight in the surrounding community. The vacant land can be used as green space or bought by someone who wants to build a new residence.  We’re finding that in some circumstances these properties are more marketable if the derelict house is gone.

Persons who do work without a permit or allow bedrooms in basements that are in violation of the building code risk more than fines.  In a tragic case in Ann Arbor, a homeowner’s daughter died along with another person because of a fire in the basement.  The owner was charged with renting without a certificate of compliance, illegal occupancy of the basement, inadequate smoke detectors, and inadequate exits from the basement by the local prosecutor. The public just doesn’t understand how building inspectors save lives.

The Chicago Tribune has taken on lenders over the devastation that has befallen neighborhoods while they sit back and let property deteriorate.  I’ve noticed a phenomenon in my practice when I’ve researched properties in foreclosure that have code violations. Lately I am seeing more and more foreclosure actions that are stalled after the lender obtains a judgment of foreclosure.  No sheriff sale takes place or the sale is canceled.  The lender doesn’t take the steps to get the deed and tells the local government that it’s not responsible for the property even though the owner is long gone.  The article in the Tribune discusses the consequences of such business practices:

Such legal maneuvers by banks, which in many cases either walk away from properties that aren’t worth selling or let foreclosure proceedings languish in an overwhelmed court system, have left thousands of dilapidated vacant houses in ownership limbo citywide.

At the same time, the financial industry is fighting against proposed legislation in Illinois that would make it responsible for the upkeep of a property once a foreclosure suit has been filed if the property is vacant.

Insurance companies can be allies in the fight for life/safety compliance. They have considerable power over property. If persons insured by the companies don’t live up to the standards of the policy, they may lose their insurance benefits.   A judge in Massachusetts has ruled that an insurance company does not have to pay for a fire that occurred at a restaurant because the owner did not properly maintain a fire suppression system. The Insurance Journal reports:

At issue is an exclusion in a commercial lines policy issued to the French King restaurant in Erving, which required the restaurant owner to maintain a fire suppression system. The insurer — Interstate Fire & Casualty Co., a subsidiary of Fireman’s Fund — claimed that the fire-suppression system installed at the restaurant was obsolete, and therefore triggered the exclusion and did not require them to indemnify the restaurant.

The court agreed and ordered the restaurant to pay back the $15,000 advance given to the owner before the investigation was completed.  I’ve always wished there was a separate registry of properties and their insurance companies so inspectors could alert the insurance company about dangerous conditions. (I make no comment as to whether this might violate privacy laws in some states).  Most owners will act so they don’t lose their insurance unlike the owner in this case.  The article said that the owner could have upgraded his system for $3,250. Unfortunately, fire inspectors have to repeatedly try and obtain compliance because of the real threat of fire while some owners only see the extra cost to themselves when asked to comply.

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.

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.

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.