Having prosecuted many owner/landlords, I have heard lots of excuses for the violations on their properties but they are all very similar. I started pondering this after reading an article about an owner/landlord in West Virginia who complained he was being harassed and singled out over properties he owned. These “defenses” fall into the following categories:
- The inspectors don’t know what they’re doing and the (fill in the blank) is perfectly fine.
- The inspectors are out to get me because of (choose one – politics, they don’t like me, I am a ______ and I’m being discriminated against).
- I’m being harassed.
- The inspectors aren’t going after other people who commit violations (sometimes illustrated with photos).
- I’ve put $$$ into the properties and the inspectors aren’t giving me time to fix things or I don’t have the money to fix the properties.
- The city wants to put something else where my property is and is trying to drive me out.
- The tenants destroy my property.
Some of these may be legitimate reasons but often not legal defenses. My response to these types of arguments are:
- Did you appeal the inspectors decision to a higher authority?
- Did you report the harassment to the police?
- There is no such crime as “harassment”.
- If the inspectors have been smart and notified other violators at the same time as a troublesome owner, I point out that he/she is the only one who didn’t comply after notification.
- Please give the photos to the inspectors so they can follow up on enforcement against the offender (usually met with, “I don’t want to get anyone in trouble.”
- If he/she can’t afford to keep the property up, maybe it’s time to consider other options.
- What proof does he/she have of the city trying to have something else built on the property.
- Perhaps screening tenants would be a good way of saving money on repairs in the future.
- Do you agree there are violations on the property in addition to the reasons you think you’re being harassed?
Rarely does anything legitimate come up in these conversations. Do any of my readers have other great excuses? I will publish the best ones.
What can be done when a defendant refuses to obey a court order, whether it’s fixing up properties or turning over documents? The solution is the contempt power of the court which is the way that the court enforces its orders. Without it, court orders would be toothless and unenforceable. The court can order the defendant to be jailed until he or she complies or impose daily fines until there is compliance. Most defendants will comply if there is such a threat. The prosecutor usually begins the process by filing a document known as a rule to show cause why the defendant should not be held in contempt of court. The defendant then gets an opportunity to show why he or she shouldn’t, usually by complying with the order. This is why it’s so important to have the court issue an order and then set a deadline for compliance. Once that date passes without compliance, the prosecutor can file such a motion and begin the process. Without it, justice would grind to a halt. In a Milwaukee case, a court appointed manager is asking the court to hold a defendant in contempt for failing to turn over records so the manager can do his job regarding the defendant’s properties. Every court is vested with this power so it can enforce its orders. Without it, enforcement against recalcitrant owners would be impossible.
In my last couple of Tweets, I pointed inspectors to articles involving the explosion of the fertilizer plant in West Texas and a tragic fire in England. It’s a shame we wait until people die before there is interest in better prevention and regulation. It’s human nature to cut corners to save money which is why we need consistent oversight to prevent these foreseeable tragedies. After these terrible events which catch the attention of the public, we always see a flurry of enforcement but eventually that fades until the next preventable occurrence. These are opportunities though to educate the public and why safety inspections are so important.
Recently I was interviewed by MSN Real Estate for an article on working without a permit. The article just appeared online entitled “When Homeowners Go Rogue”. It’s a very thorough article about the dangers of working without a permit, hiring unlicensed contractors or failing to research a property before buying it. Much of the article is based on my interview with Marilyn Lewis, the author, and it mentions my book, “The Building Process Simplified”. It may be a worthwhile article to disseminate to the public in your local jurisdiction.
One of my pet peeves are building permits that don’t have a set expiration date. Most of the building codes have their permits expire 180 days after no work is done. However, this leaves open the potential for a permit to last a long time. For example, if a person pounds in a couple of nails every other month, it would be tough to prove in court that the permit expired. Recently, inspectors in my area did a survey to see what various jurisdictions did with permit expirations. I particularly liked Crystal Lake, IL’s approach. A permit for commercial construction lasts 1 year and a residential one lasts 6 months. In addition, there is a provision for a special permit with specific conditions. That would be very useful in a situation where a builder has been remiss in moving a project along. Recently, I had a case where as a condition of a sentence, the defendant agreed to a timeline of construction. It was not part of the permit because there was no provision for such a thing. It would have been helpful if the permit could have been issued with specific deadlines. The Crystal Lake ordinance also has provisions for extensions. I would rather see a set expiration date with a possibility of an extension rather than have to guess when a permit expired.
One of the biggest problems facing local governments these days is finding the resources to maintain vacant properties. These homes are empty because of the foreclosure crisis and for the most part, lenders with mortgages on the property are reluctant to pay for the upkeep so the problem falls on the city, town or village. One would think that during the worst housing disaster in our life time, state government would help local governments deal with these properties by passing legislation that makes it easier to hold lenders responsible. Unfortunately, in Illinois, little is being done by the General Assembly. Bills that would help us fail year after year. At least now we have some information as to why it’s so difficult. The Chicago Tribune this week published a long article detailing how the Speaker of the House, Michael Madigan, represents numerous banks in his private legal practice. In Illinois he pretty well controls what legislation sees the light of day and what bills do not. When I travel out of the state to do trainings, I am ashamed to say that I am from Illinois when I hear what other states are doing. For example, in some other states, if the local government cuts the grass, the cost goes on next year’s tax bill. When the taxes are paid, the local government gets paid. That doesn’t happen in Illinois. There is a law the purports to allow this process but it was drafted as to be unenforceable. Illinois is becoming a punchline to a joke that isn’t very funny.
One of the inspectors at my Region III class brought to my attention a process of disposing of human remains that is called biocremation alkaline hydrolysis that his community rejected after a mortuary sought approval. (Cloquet Council Votes No) It’s being promoted as a “green” process which includes liquifying the soft tissues of the body and the liquid is poured into the sewer system. It’s not legal in many states yet and there has been concerns raised in some places including California for a variety of reasons. There is research on using this method to dispose of animal carcasses that may have some bearing on its effect on the environment.
A young woman lost her life in Chicago recently during a fire. The fire began in a unit in a high rise apartment building, the residents fled the fire but left the door open so one of their pets could escape, the unsuspecting woman took the elevator up to the floor where the fire had spread, and was overcome as soon as the doors opened up. The building did not have sprinklers, a fire alarm system or an automatic recall elevator system according to ABC news in Chicago. The City of Chicago had delayed forcing older building to conform to the fire code by extending the time for compliance in its ordinance. In an interesting development, the State Fire Marshal cited the building owner for 19 violations of the fire code including the above violations which violate the Life Safety Code. Building owners are now arguing that they are confused over which law to follow. The State of Illinois has adopted the Life Safety Code as its state code. Chicago has home rule powers but that doesn’t exempt buildings from following state law unless state law grants such a waiver. Unfortunately, Illinois is hodgepodge of laws. We don’t have a state building code. Local governments basically adopt whatever they deem proper for the locale though most of the cities and villages I know of do adopt the Life Safety Code in addition to the IFC as their local ordinances. The caselaw in this area uses a balancing test weighing the cost of the upgrades versus the safety of the public. The safety of the public usually prevails which is why owners can be forced to retrofit their buildings. We know what prevents loss of life in fires but the outcry from building owners that delay upgrades due to the cost too often results in loss of life.
I received a request that I post this question for all of my readers to answer. Do any of your jurisdictions have an ordinance allowing you to shut down a business if it is occupying the space without a certificate of occupancy? Certainly if the work is hazardous, an inspector can use emergency powers to do so. However, most of the cases don’t fall into this category. The way I usually handle those cases is to recommend that the inspector ticket the owner every day the business remains open. If that doesn’t work in a couple of days, the inspector starts giving tickets to the managerial staff, and if that doesn’t work, the inspector gives tickets to the employees (it doesn’t usually go that far). In Illinois, a defendant who commits an ordinance violation can also be arrested. I actually had a case where we gave the person a ticket in the morning, told them not to reoccupy the space, and then arrested him in the afternoon when the inspector found the business still operating. If anyone has something to share, I will post it and give you credit.
A very worrisome lawsuit has been filed by the Federal Housing Finance Agency which oversees Fannie Mae and Freddie Mac, against the City of Chicago which recently passed an ordinance that requires mortgage holders to register vacant buildings 30 days after they become vacant or 60 days after a mortgage goes into default, whichever is later, pay a registration fee, keep the premises free of weeds or trash and make sure they are structurally sound.
The lawsuit says that:
….the city’s ordinance encroaches on the FHFA’s role as the sole regulator and supervisor of Fannie Mae and Freddie Mac. It says Chicago cannot mandate how the agencies handle vacant buildings for which they are the designated mortgagee.
The problem is that Fannie Mae and Freddie Mac own about 258,000 mortgages in Chicago so a considerable number of vacant structures would be unregulated if the lawsuit succeeds. Illinois law makes it almost impossible for a municipality to cut weeds, fix up property and add the costs to the property tax bill. This has really hampered our ability to address problem properties which is why ordinances like the one in Chicago are so important.
