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.
Many times I’ve heard tales from code officials as I travel around the country about politicians who have problem properties and who are above the law. Code officials are in a very difficult position when some of the worst properties are owned by people who vote on their budgets and salaries. Consequently, it’s refreshing when a story appears about a local government offiicial who is being taken to court for property maintenance issues. The Journal Sentinel reports that the Milwaukee County Board President is facing court action over five properties he owns including violations for rodent and roach infestation, loose window trim and moldy walls. http://www.jsonline.com/news/milwaukee/110894119.html The city finally filed charges because it was unable to get compliance any other way.
Sometimes a code violation is so serious that it demands more than the usual citation. In a recent case in Ontario, Cananda a landlord pleaded guilty to fire code violations after an explosion severely burnt a person in a residence converted to a rooming house. http://www.thebarrieexaminer.com/ArticleDisplay.aspx?e=2860945 The defendant was placed on probation but could have received jail. We should not forget that in some cases, the situation may cry out for criminal penalties. In Illinois we have a criminal housing management statute which probably isn’t used as often as it could be. It’s important for code officials to have a strong working relationship with the local governmental agency’s police department so law enforcement doesn’t hesitate to become involved when it should. The police are not going to investigate unless a complaint is made and the code official assists the police in understanding how bad the circumstances are. It is important to deter landlords who try to save money by gambling with tenants’ lives.
A landlord in Ontario, Canada recently pleaded guilty to fire code violations in connection with a fire that occurred in an apartment building. http://www.mykawartha.com/news/news/article/905196 What caught my attention in the article that discussed the case was a statement that landlords can be held liable if any occupant is injured in a fire because the building is not compliant with the fire code. This is true in the United States, as well. Owners run a risk when they do not fix code violations because if someone is injured or killed, there is very good chance the owner will get sued for negligence. Sometimes when a law colleague is pursuing a personal injury suit, I’ll get a call from him or her asking for help in understanding how building and fire codes work. Usually, I can find something in the code that covers a violation that led to the injury. Good landlords don’t take risks and try to avoid problems so they don’t end up on the other end of a lawsuit.
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
After writing this morning’s post, I came across a chart that someone had made to show who was the actual owner of his mortgage. You can find it at http://www.zerohedge.com/article/just-when-you-thought-you-knew-something-about-mortgage-securitizations One of the comments on the article says it looks like the wiring design on a hybrid car. Unbelievable.
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.
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.
