It’s not unusual for one agency to stumble upon evidence that would interest another department in the local jurisdiction. Firefighters in Columbia, Pennsylvania recently found a marijuana growing operation when they responded to a fire. Police investigated and found plants growing and bags of weed. The police have to be careful before they enter a building though. Unless it’s an emergency (and the destruction of drugs is not usually considered to be one), the police cannot enter a building without consent from the owner or occupant or without a search warrant. Just because an inspector has a right to be on the premises, doesn’t mean personnel from another agency can join him or her. The information uncovered by an inspector can be communicated to the police and used as the basis for a criminal search warrant.
One of the most difficult situations I deal with as a prosecutor is trying to find someone to take responsibility for a property where it is in foreclosure, the owners have abandoned the building and the lender fails or refuses to complete the foreclosure process. Some nonprofit organizations are stepping in under those circumstances and using state laws on abandoned properties to take them over, fix them up and then sell them. One such organization is featured in an article in the Huffington Post. Unfortunately, in some states, the waiting period for action is lengthy. While the clock is running, the property continues to deteriorate. It is shocking to me that legislatures fail to address the problems these derelict properties create for communities and local government. Far too often state law protects lenders from having to take possession of these properties and maintain them prior to the foreclosure judgment even though the owners are no longer around and the mortgage document gives the lender the right to ask for possession. These nonprofits that take on this difficult task should be applauded for their efforts but there aren’t enough of them to make a dent in this horrendous problem.
I was recently contacted by someone who is gathering data on the housing market with a special interest in the health of condominium associations. He was concerned that many of them, especially those that are recent conversions, are struggling financially as more and more units are subject to foreclosure. This raises problems for inspectors. If an association falls apart. who is responsible for common area problems? I’ve had this situation happen a number of times, especially with fire code problems and building code violations. The first question that needs to be answered is how is title held regarding the common area in a condominium development? In some developments the title is held by the condo association but in others, each unit owner owns an undivided share of the common area. After that question is answered, the next one is: what does the declaration of condominium say about who or what is responsible for the upkeep and repair of the common area? Typically the association is responsible. If the association owns the common area and is responsible for its upkeep, the answer is easy. I tell the inspector to notify and cite the association if necessary. I’ve known some jurisdictions that have even helped associations get reinstated that had lapsed. However, if the common area is owned by the individual unit owners, it gets trickier. If the association is responsible for the upkeep under the declaration, then it is in control of the property and is considered an “owner” under the IPMC. However, if the association doesn’t exist, who does the inspector pursue? In that case, all of the owners are responsible and should be notified and cited if necessary. This can be a huge undertaking in a large condo complex. Sometimes following this procedure stirs up the unit owners enough to form a working condo association. It’s far easier dealing with one entity than multiple owners and the local jurisdiction should encourage the owners to follow the condominium declaration and form a viable association.
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.
I actually escaped the snow in Chicago this week by heading up to the Region III ICC conference in Minnesota where the weather was sunny. I always have a great time at that extraordinary conference. It was great to see that attendance was very healthy and maybe we’re beginning to see a thaw in some of the gloom we’ve all been dealing with since the economy tanked. I taught Advanced Legal Aspects for Fire Code Inspectors and the inspectors asked a lot of good questions. We had a healthy discussion about post-deprivation hearings after an emergency evacuation. There’s quite a few cases now that make it clear that people (tenants and owners) who are deprived of their property rights in a building because of an emergency evacuation order, have a right to be heard after the fact at such a hearing. Most of the time no one actually appears at a hearing or files a notice appealing the order of the fire official. But, in order to meet the requirements of the fourteenth amendment, they must be given the opportunity. By keeping an appropriate record of the hearing or appeal, the local jurisdiction can easily avoid a civil rights lawsuit for depriving an individual of his or her property without due process.
