One of the exurbs (a district outside a city, especially a prosperous area beyond the suburbs, dictionary.com), which shall remain unnamed to protect myself, where I inspect in the DFW Metroplex has a person working as Chief Building Official (CBO) who appears to be working against the best interest of the home buying public. Though this person possesses the requisite professional certifications for the job he/she is apparently disseminating false information to the home buyers in his/her district that all should be made aware of.
Among other numerous specious opinions, i.e. interpretations of the building and electrical code that he/she evidently pulled directly out of the terminus of his/her digestive system, rendered by this person during the course of inspections recently on a property there, one in particular stood out. He/she explained to the buyer of a new home that he/she would not be inclined to enforce certain code issues because the builder would “take care of those under the warranty”. Really? Now the builder is the building official and the building official is working for the builder, right? Who knew it was supposed to work that way?
Many, if not all, builder warranties exclude building code related issues and any items you provided on a punch list to your builder that did not get repaired before closing. This means that your builder has no obligation to make repairs to building code defects after closing escrow.
An example can be found in my client’s warranty. Similar wording is to be found in other warranties.
“Exclusions The following are NOT covered under this Limited Warranty:Violation of applicable building codes or ordinances, unless such violation results in a Defect which is otherwise covered under this Limited Warranty. Under such circumstances, the obligation of Builder under this Limited Warranty will only be to repair the defective warranted portion of the Home, but not to restore or bring the Home to conform to code.”
Check your own warranty so that you gain a better understanding of what is and is not covered. Read carefully as these are written to obfuscate the fact that they exclude more than they cover.
Further, it is my understanding that this building official told the buyer at one point in time that he/she was not comfortable fielding questions regarding a house that he/she did not yet own. Fortunately for this buyer he/she had already purchased the lot so the house was in his/her name on the tax roles.
The municipality in question has adopted the 2015 version of the International Residential Code, among others. In that volume it clearly states:
“R104.1 General. The building official is hereby authorized and directed to enforce the provisions of this code. The building official shall have the authority to render interpretations of this code and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in conformance with the intent and purpose of this code. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this code.
Commentary The duty of the building official is to enforce the code. He or she is the “authority having jurisdiction” for all matters relating to the code and its enforcement. It is the duty of the building official to interpret the code and to determine compliance. Code compliance will not always be easy to determine and will require judgment and expertise, particularly when enforcing the provisions of Sections R104.10 and R104.11. In exercising this authority, however, the building official cannot set aside or ignore any provision of the code.
The building official establishes policies and procedures that will clarify the applications of the code. The development of those policies and procedures should not be simply for the convenience of the jurisdiction’s employees, but should be viewed as a way to effectively communicate to all interested parties involved in the construction process how the department will process applications, review construction documents, make inspections, approve projects, and determine and clarify the application of the code provisions. Properly developed, these policies and procedures can make the code enforcement department more predictable for those who are regulated and will also establish improved code compliance and public relations.
When interpretation of the code is needed, the building official is the one individual of the jurisdiction with the legal authority to interpret the code and determine how the provisions should be applied, in both general and specific cases. Some departments formalize the interpretation process and require the person with a question to submit their question in writing. Departments are encouraged to develop policies for both formal (written) and informal (verbal) requests for code interpretations. Any such interpretations must be in conformance with the intent and letter of the code and may not waive any requirements. It may be necessary in some cases for the building official to write these code interpretations into the permit.”
It is assumed that the reasonable man on the street understands what this says. It is written in English and is required reading for anyone aspiring to become or just simply wakes up one day to find themselves a building official. That said, I question the reasonableness of the code official in question. Folks like this are out there. Buyer beware.
On that note another publication from the authors of the International Residential Code is the Legal Aspects of Code Administration. In Chapter 9 of this volume it states in part, “The Latin term caveat emptor, means “let the buyer beware.” Thus, it is up to the purchaser to determine the soundness of the building prior to the finalization of the purchase or to hire a professional inspector”, (italics are mine).
In Texas where big business reigns supreme, and don’t kid yourself homebuilding is BIG BUSINESS, developers and home builders are at the wheel. They apparently have the legislators and municipal officials under thumb. If you are not looking to get thoroughly screwed you had better hire a competent independent inspector to inspect your house from the ground up in order to avoid being taken advantage of by this good ole’ boy system that includes the CBO in question.
How To Avoid Being (Completely) Screwed When Buying A New Home in Texas
When purchasing a new home from a Texas home builder, you are entering a veritable mine field from which you will not escape totally unscathed, all prudent preparations on your part notwithstanding. Regardless how intelligent, street smart, savvy, or tough-minded you envision yourself to be, you are outgunned from the start. Your opponents are corporate production builders who spend more money on lobbying the Texas legislature than nearly any other group. The laws regarding home building are written to protect them – not you. Unconvinced? Let’s take a closer look.
When a conflict arises from your learning that your builder is shoddily constructing your new home (which is inevitable), you have little viable recourse. All builders’ contracts contain a clause that limits your legal action against them to binding arbitration. This is an expensive process that is heavily weighted in the builders’ favor. The arbitrators are always from the American Arbitration Association. This group is in close affiliation with the National Association of Home Builders (NAHB). From their site: “As the provider of choice for dispute resolution services, the AAA through its National Construction Dispute Resolution Committee (NCDRC), has worked closely with the industry to develop the Construction Industry Arbitration Rules and Mediation Procedures and other project specific approaches to prevent and manage conflict.” These rules are written by the builders and for the builders.
The building codes adopted by the various municipalities in the state of Texas are based upon those authored by the International Code Council (ICC). While, at first blush, appearing to be an independent code-authoring organization, further investigation reveals undue influence from the NAHB. Just one glaring example is that, from its inception in 2000, the ICC’s International Residential Code stated its purpose in 101.3 as “The purpose of this code is to provide minimum requirements to safeguard life or limb, health and public welfare.”
Now let’s watch the changes that occurred in 101.3 during subsequent versions.
The 2003 version states, “The purpose of this code is to provide minimum requirements to safeguard the public safety, health and general welfare, through affordability, structural strength, means of egress facilities, stability, sanitation, light and ventilation, energy conservation and safety to life and property from fire and other hazards attributed to the built environment.” This is an improvement. The 2006 version states exactly the same. All is well so far.
The 2009 version introduces a fly into the ointment: “R101.3 Intent. The purpose of this code is to establish minimum requirements to safeguard the public safety, health and general welfare through affordability, structural strength, means of egress facilities, stability, sanitation, light and ventilation, energy conservation and safety to life and property from fire and other hazards attributed to the built environment and to provide safety to fire fighters and emergency responders during emergency operations.” Now, the minimal building code, which is the worse way one can legally build a house, hinges upon affordability and not safety. And, the picture gets even more bleak.
Municipal Building Inspectors
When a municipality in Texas adopts a building code it becomes and has the force of law. The municipal building inspectors are tasked with the job of enforcing this code, or are they?
In IRC 104.1, we find, “The building official is hereby authorized and directed to enforce the provisions of this code . . .” So far, it sounds like the onus is on the building official to enforce the building code. But wait.
The rest of that citation goes like this, “. . . The building official shall have the authority to render interpretations of this code and to adopt policies and procedures in order to clarify the application of its provisions. Such interpretations, policies and procedures shall be in conformance with the intent and purpose of this code. Such policies and procedures shall not have the effect of waiving requirements specifically provided for in this code.”
That still sounds like the building official must enforce the spirit, if not the letter, of the code. However, on January 19, 2005, Greg Abbott, Attorney General of Texas (yes, the same bozo that would have you elect his sorry self for governor) rendered a rather specious opinion on the matter that concluded with this, “Local Government Code section 214.212(c)(1), which permits a municipality to adopt local amendments to the International Residential Code, does not limit the municipality to adopting only local amendments that are equivalent to or more stringent than the standards of the International Residential Code.” In other words the municipal inspectors can do as they please. The building code be damned.
Remember that the building officials work for the corporations that are the municipalities. It is their job to protect that corporations and not you. They are also stuck between the developers wanting to build in their jurisdictions and the politicians they work for. So who will be on your side?
Hire an attorney before you sign any paperwork with any builder. Not just any attorney will do. Your run-of-the-mill, paper-shuffling bar-passer will not suffice. You need an attorney who is experienced in dealing with builders and their contracts. If you need a referral, contact me.
Strike the binding arbitration clause. Add to the contract that your builder shall repair everything that your third-party inspector finds to be in conflict with the letter and spirit of the adopted building codes. You should also insist that the builder supply you with a complete set of the construction documents (blueprints). Do not fall for his story about them being copyrighted. While they are indeed copyrighted, the copyright only prevents you from selling the plans or using the plans to build a house, it does not prohibit your possessing a set of plans to the house you have bought. As the owner of the home your possession of the plans would fall under the doctrine of fair use.
Hire a competent home inspector. The minimum requirements for this inspector are, (1) Significant prior home construction experience, (2) International Code Council certification as an R-5 Combination Residential Inspector, (3) Licensed by the Texas Real Estate Commission or the Texas Board of Professional Engineers.
Grow a set of cojones. Take charge of the project from the outset, stay on top of every phase of construction, and do not succumb to the builder’s bullshit and outright lies. Take no prisoners. Make no mistake. This is an adversarial relationship you are entering into with your builder. He is not your friend.
If you follow the three steps above you will not end up with a perfect house. You will also not be on the receiving end of quality construction. These are unattainable goals in the current Texas home building milieu. You will, however, be in charge of an otherwise uncontrollable process that will result in a substandard house replete with defects.
When you are buying or selling a house you will hear a lot of discussion about the building codes. Many homeowners are unclear as to what the significance of these codes is. That uncertainty extends to home builders and real estate professionals as well. So, let’s take a minute to discuss these.
Builders and real estate agents often mistakenly think (and sometimes deceitfully espouse) that the codes are in place to insure quality construction. Nothing could be further from the truth.
Simply put, building codes are the worst that you can build a building by law. You read that right. Building a building strictly to the codes, and not more, will not guarantee a durable, high quality building. The codes only seek to insure that a building is reasonably safe.
Most home buyers expect homes that have greater durability, performance, and quality than the building codes alone dictate in their minimum requirements. Contrast that with the fact that home builders are only required to build to the minimal requirements of the codes and the municipal inspectors inspect for compliance only with these minimal codes. This is the point at which the proverbial stuff hits the fan.
Let’s go a bit further down the rabbit hole, shall we? The Texas Real Estate Commission licenses home inspectors. They not only do not require that these licensed inspectors know anything about the building codes, they specifically exclude any requirement for such knowledge in their published standards of practice for professional inspectors.
Now let’s put this in perspective, if we can. Homeowners expect and demand quality, durable homes. The municipalities and their inspectors only require that the builders build to the bare minimum standards, insuring neither quality nor durability. The independent inspectors the state of Texas foists upon the homeowners are not even required to be familiar with the minimal requirements. What’s wrong with this picture?
Your only hope in assuring a safe, well-constructed home is to hire a professional inspector who is certified in the building codes and has extensive home construction experience. Code certification consists of becoming intimately familiar with the massive amount of information contained in the building codes, sitting for a battery of examinations, and then maintaining proficiency in this knowledge by continuing education.