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Buyer Beware

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.

Best,

Aaron