Do Code Violations in a House Require Correction?
There may be various scenarios in which you wonder whether code violations in a house require correction. Perhaps you are thinking of buying a house, but the home inspector’s report notes some code violations. Can that house be sold like that? Or do corrections need to happen first? Or maybe someone is doing work to your house and is telling you (with the air of a mandate) that he’s discovered code violations needing correction. Don’t simply take these statements at face value – there’s more to understand there.
Generally speaking, as long as a pre-existing portion of a house remains unaltered, there is no requirement to update what was compliant at the time of its permitted construction, but which has since been rendered “non-compliant” by a code update.
Here in New England there are many antique houses that were constructed many generations before any building code existed. I happen to live in one. In some of these houses (like mine) roofs may have been constructed using tree limbs for rafters. Mine still have two century old tree bark on them. In some houses I’ve worked on, I’ve discovered seaweed and antique newspaper stuffed in cavities to serve as insulation, and stairs with risers twice the height allowed by today’s building codes, paired with treads half as deep as required. And many, many more oddities – none of it in compliance with current code. All things being equal, nothing in law requires the reconstruction of these houses, in whole or in part, to meet the current building code.
With all of the above said, none of it applies to unsafe conditions. An unsafe condition must be remedied without haste. The building codes require it, good practice requires it and a basic standard of care requires it.
Unless it’s new construction, asking whether a house is “up to current code” is like asking if the day old pastry is fresh. Sure, it would be nice if it was, but it probably isn’t. Moreover, it isn’t meant to be, it doesn’t need to be, and so it shouldn’t be expected.
When Is Correction Not Required?
Model building codes and the state building codes that tailor and adopt model codes are generally consistent in their treatment of existing buildings and their existing parts and systems. Basically, if construction was permitted in compliance with the codes that were in effect at the time of construction, then it is deemed to be compliant today. To be clear, because something does not conform with the provisions of the current code doesn’t mean it is in violation of that code. People have to be careful with how they throw that word “violation” around. If something is allowed, then it is not in violation. Makes sense, yes?
Again, this is not to suggest a disregard for safety. You are advised to make unsafe conditions safe.
As demonstrated by my example of houses that have existed for centuries, an existing house and its parts can be “legal” even if today’s codes are not met. But there are definitely situations where a code “violation” will not be permitted to stand. How do you know when you are facing that kind of situation? How do you know when to correct something versus when to leave well enough alone? The answer can be complex depending on all the factors involved, but let’s look at the two examples that led off this article.
If a home inspection report notes a deficiency in terms of current code requirements, does that require corrective work? A home inspection is meant to be a report of the status of a house. It identifies and then both quantifies and qualifies the various systems of a house, documenting their presence (or absence), objectively stating their physical characteristics and setting expectations towards their on-going performance and useful service life. It is a private report, in the vein of a capital needs assessment report; it has no basis in building code enforcement and no place in municipal record keeping.
As a point of information, however, a home inspection report may indicate in its notes that an element or portion of the house is not constituted to current code or is not achieving current code levels or currently required degrees of performance.
Take thermal insulation, for instance, for which requirements tend to increase from time to time. A house that was insulated properly when it was constructed may not be insulated to the current code requirements today. To require all houses to upgrade their insulation systems at each code update would be seriously onerous on the public and would render the vast majority of existing houses “illegal”.
Another example is lateral wind bracing of houses. Requirements for wind bracing were updated quite substantially a few code cycles ago. It feels safe to say that at the time of that update, there were no existing houses that conformed fully to the requirements of the new code. Then there are code requirements for resisting wind uplift. They have been evolving under incrementally stronger requirements for decades. At any point over a generation, houses that were constructed to code when new are not meeting code requirements for new construction today. They are not suddenly illegal.
OK, so let’s say you bought the house and you hired someone to do some work. It turns out that you wanted to update the insulation after all. A contractor is in the attic filling the joist cavities with blankets of insulation. He comes to you with a discovery. He tells you that he can see where the roof rafters land on the walls – there are no hurricane tie fasteners to hold them down in the occurrence of high winds, as the current code requires. In fact, he tells you, this code requirement has been around for decades. Should you accept the change order proposal he’s handing you and authorize him to retrofit all those connections that are nearly impossible to access without an extreme intervention? Whether or not you do, don’t base a decision on a supposition that the building code dictates it, because it very well may not, depending on when those rafters were placed and whether the code at the time required hurricane clips.
If your house and its modifications over the years were all above board and proper, then until you open a building permit to undertake a project through your own volition, no municipal authority will perform a random inspection and require you to update your house to the current code.
Furthermore, the sale of a house will transact unencumbered by the fact that it would not pass inspection if built today.
Coming back to the example of thermal insulation, do you want to buy a house that is only sparsely insulated because oil was cheap when the house was built, and the building code at the time permitted low R-values? That’s a separate consideration, one that is subject to personal motivations and serves as fodder for the art of negotiation during the purchase of the house, but as long as it met the code in effect at the time, the existing insulation is not subject to the requirements of the current code nor does it fall into the jurisdiction of the Building Official.
When Is Correction in Fact Required?
Correction is required when work is discovered that was constructed without permits, and is determined to be in violation of the building code. The discovery would be by an authority having jurisdiction, like a building official, or by anyone with a professional reason to be poking around in your attic. Or, it could be by you, in an ‘ah-ha” moment. Meanwhile, ignorance is usually the force in play until a real, actionable code violation is discovered.
Existing noncompliant construction that is permitted to remain is not required to be updated unless and until it is being altered. A repair will not bring a duty to update to current code – the work has to be more substantial than that. A reconstruction or a replacement will trigger the need to update to the current code, but even then there are exceptions. For instance, in model codes a non-compliant stair is allowed to be rebuilt as new in its non-compliant configuration if modification of the structural members that form the floor opening are not part of the intended work.
Let’s look at that rafter connection scenario again, more closely and with more information to amp up our fictional story line. Yes, the contractor laying insulation is correct – rafter hurricane ties have been required by model building codes for decades, but they haven’t always been required.
In our story, we have just established that the building had been built before the code had a hurricane tie requirement, but to render the story further, let’s say the roof structure had been completely removed and rebuilt in recent years. Maybe a tree crushed the original roof, or a storm blew it off (rafter ties didn’t exist when it was built!). Rebuilding the roof from scratch, the owner had decided to do the work himself and did not bother to get a building permit. He may have saved himself some money, but in the long run he put you, the future owner, at a huge disadvantage.
Because it was not properly permitted, that rogue roof construction is now not protected by the existing building permissions of the current building code. Put another way, it is not officially “grandfathered”. Upon discovery by the building official, that roof construction would need to be retroactively permitted and the non-compliant work remedied. Well, you may ask, how will the building official ever discover this, so many years later? It’s been built for a long while and no one has complained or mentioned it in all that time. Isn’t it free and clear at this point?
Construction is a matter of record. Each permit issued since a building department came into authority is recorded and filed. In our story you have only recently purchased the house. And wouldn’t you know! The seller did not disclose to you that portions of the house had been constructed without permits! Since you didn’t discover that fact before you purchased, you now own that liability and don’t even know it (your home inspector was not tuned into this aspect since the overall house is of a vintage age, and the rafter ends had been concealed by items stored in the attic).
All of this is fictional, but it’s plausible, because it is pieced from various real-life experiences. The kicker, of course, is that you don’t even know yet that the roof structure was built without a permit. You will learn that at a most inopportune moment. It will be during a framing inspection when you are in the middle of building a new addition that intersects the rogue roof. Or it will be when the roof is damaged and is being surveyed by an insurance claims inspector. Or you will learn this unfortunate news when you are selling the house years later and a prospective buyer has taken it upon herself to perform a decent level of due diligence.
Any Concerns for a Portion of a House Built Faithfully to the Code of it’s Day, But Without a Permit?
Not only does that question provoke a shudder, but its answer has some real headache potential, as well. Understand that if a construction was not officially permitted, then officially it does not exist, and if you take action to retroactively permit it, it will not be held to the code of it’s time, to which it was faithfully built. Rather, it will be held to today’s code. If the code has updated in the meantime to become more restrictive, the un-permitted work will need to be corrected to comply with the stricter requirements. So more than likely, it is not a simple matter of paper work and payment of a fee, it is quite possibly a construction project.
If you don’t care to undertake that construction project you may just decide to sell your house and be rid of it, hoping you can simply escape the situation. If it has been discovered by the municipality, depending on its severity you may find yourself in a different kind of situation. Quite possibly you may receive a cease and desist order from the municipality, which could demand that you rectify the code compliance and bring your house into compliance with permitting requirements for the illegal construction. Cease and desist orders are often coupled with fines that are assessed and accrue daily until the terms of cease and desist order have been satisfied. A house that is under a cease and desist order is subject to foreclosure by the mortgage lender if ownership is financed through a mortgage.
It’s a sad and sordid tale woven here. Cautionary tales are often that way. Granted, it would be the rare and unusual occasion for an ordinary homeowner to encounter all of the misery of this story, but it is not so far outside the realm of plausibility, and so a telling of a fictional worst-case tale has merit. While most “code violations” are in reality probably better termed as “existing condition permissions”, or are best qualified as “grandfathered” violations, the effort to investigate whether any real violations exist and to understand the gravity of what is at stake if they do is fundamental to home ownership.
The term code violation is sometimes misused. True violations require remedy, but don’t mistake an acceptable condition for a violation. A simple way to approach a condition that’s in question is to determine if the condition was code compliant when it was constructed AND if it was permitted through the local building department. If both of those factors are affirmative, and no modifications to the condition are intended, then it’s up to the homeowner to decide when correction is warranted.