Home Inspectors report defects, not code compliance. We are concerned with reporting to our clients the existence of dangerous conditions that have the potential to harm persons and/or property. Along with The Standards of Practice, this is our guidance; sometimes it is the same and sometimes it is not.
The first known written building code dates back to 1758 B.C. and was written in stone. It was a statement assigning responsibility to the builder, but didn’t have any detailed direction on how things were to be built. The code was enacted by King Hammurabi in Babylon and it said: “If a builder has built a house for a man and his work is not strong, and if the house he has built falls in and kills the householder, that the builder shall be slain.” There are also a slew of other archaic laws or codes, but we don’t want to be confined by outdated standards from the past, so we analyze needs regularly and update our codes accordingly.
Codes dictating how to build are relatively modern inventions that are updated regularly based on lessons learned from the past. Updates typically are the result of mistakes being made and people getting hurt, they are also adopted to account for expectations, availability, budget etc. All can be a reason to change what we currently know. Can a new material provide the needed function more efficiently than the more stalwart old ones? Is there a better material to use in certain regions? Were old codes too restrictive? Does new technology negate the need for old codes?
The ability to communicate ideas is easier than ever before and leads to more frequently changing codes, but codes across the country are not always universal. There is a common acronym in construction called AHJ, or Authorities Having Jurisdiction. This means that when building, even different parts of a building are overseen by different jurisdictions; in other words, follow the rules for the relative rulers. This acronym is common to see in specifications, it’s a CYA phrase (another common construction acronym) because things can change between the time a specification is written and time of application, it’s not always clear where the line of jurisdiction lies, and parts of national codes may not be adopted by local governments.
For example, for the past four years I’ve worked on apartments being built with a new structural steel building system that had been engineered and used in other cities, but it was a new system to Denver. The city fire codes had to be adapted to the new building system. The way the structural system integrated with insulation, firewalls, mechanical, electrical, plumbing etc. was all different.
Another example is the new energy codes created for the first time in 1998, before this time we did not have energy codes. As a society, we changed what we valued and adopted codes accordingly.
In 2016 there was a case law that ruled a developer and general contractor were liable for violations of the consumer fraud act despite not violating a single, applicable building code. In knowingly building a garage that was insufficiently sized to fit average sized vehicles, the developer was liable for consumer fraud. The division ruled that the absence of a building code violation did not translate to the absence of a construction defect. Rather, the model homes contained construction defects because the garages were clearly too small for their intended marketed use.
A defect exists when something doesn’t serve intended purpose or has the potential for harm to person and/or property. The components in a home should be safe and work in synergy with each other. Reporting on defects makes sense; Not all AHJ’s adopt national codes right away, so something may be out of code, but still be serving its intended purpose and not harming anything. Unless extensive renovations have been done and a new permit was obtained, things are grandfathered in.
What does this mean? A grandfather clause (or grandfather policy or grandfathering) is a provision in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from the new rule are said to have grandfather rights or acquired rights, or to have been grandfathered in. It also means as long as new permits aren’t being issued due to extensive renovations being done, components can pass as occupiable and shouldn’t hold up a transaction; (certain types of loans may require safety items to be fixed before closing, but these are reported by the appraiser). Whether buying an old home or an old shirt, aside from safety, you can’t expect it to meet new standards. What was legal when the house was built, may not be legal at the time it is inspected or sold.
Building codes are about managing risk; when you buy any home, especially an older home, you must decide what kind of risk you’re willing to live with. How much necessity do you put on requiring your home to be up to date with the most recent codes?
As inspectors this is always a gray area for us, because sometimes the building code reflects the intended purpose.
For example: A railing with pickets wider than 4” is a safety item and it’s also against current code, but not against the code when it was built. It is a safety item because kids were getting heads stuck in railings, and therefore it should be mentioned as a defect due to safety, not code.
An attic may not have sufficient insulation for the intended purpose of keeping heat in, thus it’s reported. It may have met building code when it was built, but our expectations have changed. Energy has become more valuable; its value has changed because our values have changed. Coincidentally, the code has changed. It is reported as a defect due to the harm of the unexpected energy bill to the client, not because the lack of compliance with code.
A joist may not be up to modern code, but if a 60-year-old roof is not sagging, no water is leaking and there is no evidence of harm to persons or property. This joist would likely not be considered a defect.
Clients sometimes ask whether a home passed an inspection. There is no pass or fail; no house will be perfect. It’s our mission to open a client’s eyes to what is present and educate them and it’s their job, along with a great realtor, to determine the risk they are willing to live with and negotiate accordingly.