Podcast Highlights (No. 2): Building Codes and Building Safety

As the litigation and dispute resolution of the Forum, D1 members deal with a variety of aspects of construction law and many are discussed on the Forum’s podcast “Construction Law Today.” This podcast was established in 2019 and created by Buzz Tarlow, one of D1’s ADR neutrals. As a benefit to members, the D1 blog is spearheading a series summarizing the podcast episodes.

Episode23: Building Codes and Building Safety 

(Click episode title for the full podcast episode)

This is a summary of the podcast discussion with noted attorney, Linda Pieczynski, who is a former prosecutor, consultant, instructor and author, in the field of building safety code enforcement. Tragically, on June 24, 2021, the Champlain Towers South, a 12-story residential condominium in the Miami, Florida suburb of Surfside, collapsed, killing 98 people. According to the Engineering News records, the Champlain met all building codes in effect in 1979, which is when the building’s construction was completed. Furthermore, the Champlain was in the process of a forty-year recertification process, required by Miami Dade County, at the time it collapsed. But still, the building failed. With this tragedy in mind, this episode focused on building codes, how they work to make buildings safe, how and when they are enforced and the impacts and limitations of these codes?  

Why did the Champlain fail? After all, during the 40-year recertification process, an engineer inspected the building and prepared a report citing numerous repairs that needed to be made with the foundation and pool areas. Firstly, the repairs were expensive, probably in the five figures for each owner, and there was likely pushback on the Board of Directors by the owners that did not want to come up with the expensive assessments, so the work was delayed. Second, no one seemed to fully appreciate the urgent nature of the repairs. Third, a New York Times report indicated that some other potential causes of the building’s failure were flaws in its design, like columns that were too narrow and deteriorating concrete, which can happen when the rebar in the cement is not properly coated causing them to rust and weaken the foundation, etc. Fourth, water was not properly draining away from the building since its initial construction. Finally, the New York Times reported that during the time of the construction of the Champlain some of the city building officials received campaign contributions to help move the project along, which could have caused undue pressure from politicians for building inspectors to approve things quickly. In fact, there were numerous grand juries convened in the 80's and 90's in Florida because of shoddy inspections conducted by city building inspectors.

How is urgency conveyed by those involved in code enforcement?

Generally, if a building is in urgent need of repair, a city inspector can issue an order of condemnation to the owner and residents noting that unless repairs are made by a specific date, condemnation will occur. If the structure is immediately unsafe or there is an emergency, the building could be outright placarded. Unfortunately, with Champlain, the emergent nature of the situation was not appreciated. On a more positive note, the tragedy of Champlain has spurred the inspection of many buildings to ensure there are no hazardous issues similar to what occurred with Champlain.

How do attorneys prosecute housing code violations?

The building official/inspector sees a problem and sends notice to the owner or tenant to rectify the situation. If they do not rectify the situation, a complaint or ticket is issued requiring then to come to court. This is the point at which an enforcement attorney typically becomes involved, however an enforcement attorney may review the case before hand to advise whether an administrative search warrant should be issued to collect more evidence, etc.

How do enforcement attorneys teach courts?

The judges switch calendars regularly, so it is important to educate the presiding judge, through the use of experts, on the purpose of the ordinances that are being enforced. Most ordinances are created to address a safety concern and with the intent of ensuring structural integrity of a building is maintained. For example, an ordinance requiring that windowsills be painted was enacted because unpainted windowsills allow water to penetrate the sill and rot the wood, which will eventually destroy the building’s structure.

How do enforcement attorneys deal with the owner or Home Owner Association (HOA) that is being prosecuted? 

Some people come into court and think they do not have to do anything.  However, once they realize that they can be fined for each day the violation exists, it motivates many to act. Some HOAs are very unskilled in this area as well. Sometimes an HOA does not even exist because it has been allowed to be dissolved over the years. In those cases, the enforcement attorney will encourage some of the more responsible owners to form a new HOA so that the enforcement attorney will not have to prosecute each owner individually—which can be quite complicated. Usually, where an HOA exists, it is represented by an attorney. The enforcement attorney can then explain to the HOA attorney what the declaration states about the responsibilities of the owners versus the HOA, explain what needs to be fixed, and that they prefer not to impose fines but need the HOA to come up with a reasonable plan that both parties agree on, to fix the issue in a timely fashion.

Which of the numerous building codes apply to a particular structure and what are the jurisdictional boundaries of codes?

The oldest building code we know of was on clay tablets found in ancient Iraq and it provided that if a builder built a home and it collapsed and killed the owner, the builder would be put to death. However, it was insurance companies that really pressed for uniform building safety codes to be created, to save money because insurance companies were losing a lot of money paying out claims related to fires. For example, a prominent area of Chicago burned down in the infamous “Great Chicago Fire”. After paying out claims related to this fire, insurance companies spurred legislation that required new construction be made of brick and stone.

The first model code that an insurance company pressed for was the Uniform Building Code (UBC), which was passed around 1905, and the insurance companies urged various states to adopt this as their own code. The UBC was mainly focused on the West and MidWest. The Building Officials and Code Administrators International, Inc. (BOCA) code was mostly in the Northeast, and then there was the Southern building code. In 2000, those three groups merged together and formed the International Code Council (ICC), which is the organization that promulgates most of the uniform building safety codes, except the electrical codes. The National Electrical Code (NEC) is promulgated by the National Fire Protection Agency. Most states adopt the NEC.

For new construction, the International Business Code (IBC) applies to commercial buildings, or anything that is larger than townhouses. The Residential code deals with new residences and one-or-two story townhouses. The international property maintenance code applies to existing buildings. There are also separate codes that cover how you construct the electrical system, plumbing system and mechanical system.

Some states have state building codes that they allow local municipalities and counties to adopt and enforce, as long as they don’t weaken the code with amendments. Some states have no state building code, which is rare, in those cases the towns have their own codes. Other states, like Ohio or Minnesota, are very regimented about enforcing the code from the state down to the local municipalities. Lawyers in this field are responsible to know what code is in force and the code at the time the incident at issue occurred, as the code may have changed, and the new provision may not apply.

How has the requirement for sprinklers in new construction evolved?

Codes get amended approximately every three years, as safer technologies become available. However, technology moves more quickly than the law does. For example, sprinklers were created but it took a while for the model code to mandate that commercial buildings of a certain size and occupancy have sprinklers—the same with residential codes. Model codes require single family residences have sprinklers, but often these provisions are amended out by the municipalities due to cost. The increase in safety often increases cost and creates a constant tug of war between developers, realtors, and the municipalities who want to assure that buildings have minimum safety standards.

What is the future of codes in light of climate change and green construction?

Earthquakes, hurricanes, natural disasters, etc. cause codes to change for the better in terms of safety. However, codes cannot keep up with the speed and impact of climate change. In fact, climate change probably played a role in Champlain, with the infiltration of sea water. The codes try to keep up with those environmental changes, but they are revised every three years or so and can’t keep up. A real challenge for building inspectors and contractors is how can they prevent destruction from natural disasters from occurring. With forest fires, for example, we know how to build with upgraded fire retardants to decrease damage, but it increases cost, and where insurance companies will only pay a certain amount to rebuild, there are not enough funds to cover the increased cost of more effective fire retardants.

Green energy and green construction are huge right now. There are specialty codes that the ICB has promulgated for green energy and green construction. There is also a lot of continuing education programs for building inspectors to take to ensure they are up to date on the latest types of construction.

How did the Champlain tragedy occur, when these safety codes exist?

The codes dictate the minimum safety standard at the time it is drafted, so the Champlain was built to minimum code standards, and the standards do not guarantee a building will be absolutely perfectly safe, as they cannot—the code writers are not architects or engineers so they have to rely on other people to build buildings and human beings are fallible. Furthermore, there have been many code cycles since the Champlain was constructed, which have upgraded safety measures. The code writers also did not anticipate the climate change that would occur in Florida that would cause a lot of erosion and infiltration of water. Also, a lot of beautiful buildings have beautiful finishes, but the minimum standards for the important stuff like the plumbing and foundation, etc. If there is a tradeoff for where money will be spent there will be a struggle between constructing a building with beautiful finishes and developing the infrastructure of the building. You can do the construction cheaply and pass the minimum building safety code standards in existence at that time, but that does not mean forty years in the future, it is going to be in the same condition that it was when constructed, especially if there is a lack of maintenance. Lack of maintenance is a common problem with condo associations that fail to spend the money to get the annual reports necessary to appreciate the state of a building and set aside adequate reserves to make repairs. A code enforcement attorneys’ job is often to prevent this by catching small building safety code violations before they become major safety code violations.

Blog contributor Kanita Williams is the Principal at The Law Office of Kanita C. Williams, PC, in Washington, DC. Her practice is criminal litigation, real estate and landlord/tenant matters, and construction law.