Code Attorney

Yesterday I had the privilege of teaching Advanced Legal Aspects of Code Enforcement for Property Maintenance Inspectors for the Missouri Association of Code Enforcement at Lake of the Ozarks, MO.  Today I read the headlines about the 8 children killed in a fire in a building in Chicago with code violations.  The owner was already in court for this building that the Chicago Sun-Times said was without working smoke detectors.  I remember telling the inspectors yesterday that they save lives by doing their jobs and that rental inspection programs are a key part of enforcement. It is just so sad that this loss of life happens when these tragedies can be prevented yet some landlords resist spending the money necessary to ensure their buildings are safe.  In Illinois we have tried to get legislation passed so that non-home rule communities can license landlords but the proposed bills always die because of opposition by those who do not care enough about the safety of the public. What a waste of young lives.

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:

1. The inspectors don’t know what they’re doing and the (fill in the blank) is perfectly fine.
2. 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).
3. I’m being harassed.
4. The inspectors aren’t going after other people who commit violations (sometimes illustrated with photos).
5. 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.
6. The city wants to put something else where my property is and is trying to drive me out.
7. 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:

1. Did you appeal the inspectors decision to a higher authority?
2. Did you report the harassment to the police?
3. There is no such crime as “harassment”.
4. 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.
5. 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.”
6. If he/she can’t afford to keep the property up, maybe it’s time to consider other options.
7. What proof does he/she have of the city trying to have something else built on the property.
8. Perhaps screening tenants would be a good way of saving money on repairs in the future.
9. 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.

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.

A very important decision has just come down from the Court of Appeals of Minnesota involving the constitutionality of rental inspections.  The case is McCaughtry v. City of Red Wing, 2012 WL 2077191, 2012. Landlords and tenants challenged the rental property inspection ordinance of the City of Red Wing which allowed inspections of property even if there was no evidence of a violation as long as inspectors obtained an administrative search warrant.  The court said that:

Appellants have not established that the RDLC is unconstitutional on its face under the Minnesota Constitution on the ground that it permits the issuance of administrative search warrants by a judicial officer, without an individualized showing of suspicion that particular code violations exist in the rental dwelling to be inspected.

This case is significant given that rental inspections are crucial in fighting blight and crime.  The landlords and tenants intend to appeal to the Minnesota Supreme Court so there may be further developments regarding this. It’s even possible this could go all the way to the United States Supreme Court.

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.

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.

No better case can be made for rental inspections than when a terrible fire happens.  In San Bernadino, California, 26 dwelling units were destroyed in a fire.  When inspectors went back to check out the remaining units, over 50 code violations were found including exposed wires and other electrical problems.  There were also building code violations including illegal construction and property maintenance issues. Yearly inspections uncover these problems before they become troublesome.  It’s fashionable to rail against government intrusion and landlords convince their tenants they shouldn’t cooperate with building inspectors but this is an area where we know people will die if they don’t have an outside party advocating for their safety.  It’s all about saving lives.