Code Attorney

I recognize that hoarding cases can be extremely time consuming to deal with and difficult for a property maintenance inspector because the person the inspector is dealing with is not rational about the state of the inside of the residence but I don’t think that’s a reason to do nothing.  A woman died in her home in Skokie, IL and the only way to get her was to cut a hole in the roof in this story reported today.  http://www.dailyherald.com/story/?id=395161 I had a case last week where the defendant pleaded guilty (he doesn’t even live in the home anymore but stays in an extended stay hotel due to the condition of the house) and the judge ordered him to remove the rubbish within 30 days.  I had a picture of a dumpster on the property with just a small amount of items in it to show he hadn’t made much progress.  The defendant said he couldn’t possibly do it within 30 days because of his physical condition.  After quizzing him, the judge determined that he had the financial resources to hire someone to do it for him.  Then the defendant argued that that wasn’t possible because that person wouldn’t know what to keep and what to throw away.  The judge told him that he could do that by being the manager of the rubbish removal and he could give directions to the hired help.   The defendant still protested but we’ll see next month if progress has been made.

Posted by Linda Pieczynski Category(ies): Code Enforcement, property maintenance Tag(s):

The blog has been silent for awhile because I was on a wonderful vacation in Japan (more on that later).  But, while I was away, I had an interesting comment from Mark Gilligan regarding alternative materials.  He’s given me permission to post his remarks because he’d really like to bring this issue up for discussion.  Here it is:

I would appreciate comment on what I see as problems associated with the use of products that are not addressed in the building code that are used in building projects.  Many of these products are ubiquitous in that they are regularly used on projects.  In many cases product evaluation reports are accepted as de facto code provisions by both design professionals and building officials.  While this issue is most blatant in California my understanding is that the troublesome practices also occur in the rest of the country.

These products are considered as alternate materials and means of construction and are addressed by Section 104.11 of the 2009 IBC which requires that the building official approve their use.  I believe that there are a number of legal difficulties related to common practices that could result in much mischief.  Some of the problems include:

·         In, I would suggest, almost all cases when the building official is aware of the products and accepts their use on projects the building official does not formally indicate his approval of the use as required by the building official.  Without this formal approval the use of the product would be considered a deviance from the building code.  Thus if at any time there is a problem associated with the use of these alternate materials or means of construction the design would be considered to be in violation of the code.

·         Many building officials have adopted a policy that they will automatically accept ICC-ES evaluation reports as evidence of code compliance for alternate methods of construction.  Besides abrogating their non-delegable duty to approve the use of the products to a private entity, this policy effectively amends the building code.  While “Legal Aspects of Code Administration” page 20 talks about a minimal distinction between granting approval of an alternate product and amending the code, I believe that such practices totally ignore any such distinction.

·         The insistence by many building officials that they will only accept ICC-ES evaluation reports as evidence of code compliance creates a situation where the building official is in effect creating an unfair advantage in favor of evaluation reports produced by ICC-ES.

Because these practices are so widespread sorting these problems out will be messy.  The problems are made more difficult because the use of alternate products is so widespread.  Complying with the regulations would make more work for the building officials.  Many product manufacturers have a lot invested in the de facto code status of evaluation reports.  In addition the inability to rely on evaluation reports as proof of code compliance could create difficulties for the Owner and his consultants.

I believe that long term solution is to develop consensus standards for these products that focus on performance characteristics and not proprietary details.  These standards would then be adopted into the IBC thus removing the need for the building official to approve the use of the products.

I would suggest that this is a classic situation where the standard practices that have been adopted by a segment of society are in conflict with the laws and regulations.

Posted by Linda Pieczynski Category(ies): Building Codes Tag(s):

There is a very disturbing report, The Multifamily Housing Market  and Value-at-Risk Implications for Multifamily Lending, just released by DePaul University’s Institute for Housing Studies regarding the impact of recent property price declines and foreclosure on multi-family housing mortgages in Cook County, Illinois.  The study found that 42% of small rental buildings (2 to 6 units) are in danger of default because they are upside down on their mortgage debt.  The study said that if the trend is similar across the nation, it would be on par with the subprime mortgage meltdown.  In Cook County, the property value of small rental buildings have fallen to 46%.  Few lenders want to provide financing for these types of buildings leaving only Freddie Mac and Fannie Mae as lenders of last resort. For many owners, the income from their buildings are less than the operating expenses.  Here’s what’s of concern for local jurisdictions:

The point, in any case, is that a significant amount of disinvestment could occur in this environment, particularly in
those markets where the housing inventory has been vastly overbuilt. The usual argument is that negative equity
and declining rents will fuel foreclosures, which in turn will force down multifamily property prices, setting off a
downward spiral, particularly if credit is tight and lenders (including Fannie Mae and Freddie Mac) are unwilling
to make loans. A side implication, of course, is that, other things equal, as rents decline, the quantity of space
demanded should increase. But where there are requirements that multifamily units meet some minimum building
standards, investors will generally find operating these units financially infeasible when rents fall below this
operating cost threshold level. Thus, at or below this point the property will generally be vacated or abandoned.

You can download the entire report at http://ihs.depaul.edu/ihs/

Posted by Linda Pieczynski Category(ies): Foreclosure, property maintenance Tag(s):

One of the best ideas I heard at the OBOA/MVBOC joint conference was during a discussion on what constitutes exigent circumstances.  A building official said simply, “I know I have exigent circumstances when the Fire Marshall or engineer won’t go into the building to discuss the matter.”  I thought that was a very good rule of thumb because it’s more than an intellectual exercise.  It reminded me of a Justice Potter Stewart quote (he sat on the U.S. Supreme Court).  In trying to define pornography he said that he couldn’t define it but he knew it when he saw it.

Posted by Linda Pieczynski Category(ies): Building Codes, Code Enforcement Tag(s):

The Vacant Property Toolkit from the Business and Professional People for the Public Interest is finally ready and posted on its website at http://www.bpichicago.org/VacantPropertyResources.php  I’ve written about this organization’s work in the past to address this very important issue and the Toolkit is a great starting point for any agency trying to deal with the problems presented by vacant and abandoned property.

Posted by Linda Pieczynski Category(ies): Code Enforcement, Foreclosure, property maintenance Tag(s):