Safe or Sorry Dealing with Code and Safety Violations

Those of us without engineering degrees tend to take the buildings in which we live and work for granted. We simply assume that if we go indoors, the ceiling isn't going to suddenly collapse. Of course, buildings can remain upright and structurally sound with proper maintenance and upkeep. Maintaining a building sounds like common sense, but inevitably some boards avoid it.

After all, maintenance work can often be expensive and intrusive. Fortunately, we have building and safety codes to encourage regular maintenance—and protect the irresponsible and naïve from themselves. Since we're not all engineers, boards and managers need to rely on inspections and consultations to make sure their community isn't the site of an avoidable tragedy.

The Gold Standard

Statewide, New Jersey uses the International Building Code and the International Residential Code as its rubric for building safety. The IBC and IRC are the established standard worldwide, and many states in the U.S. adopt them as a baseline for building inspection. “A few of the towns have their own codes, which supersede the minimum requirements of the state code. The state uses the international building code, which many of the states in the country use,” says Gary Gartenberg, a senior engineer at The Falcon Group, which specializes in engineering, architectural and energy consulting services, in Bridgewater.

To the layman, building codes can seem convoluted, but broken down, the codes deal with the most important safety elements dealing with a building’s structure. “Some of them have to do with different occupancies, the Americans with Disabilities Act (ADA), fire codes, for example,” says Lynn Voorhees, director of community association services at DW Smith Associates, LLC, a professional consulting and engineering firm in Farmingdale.

New Jersey has used the 2009 edition of the IRC, but will soon adopt the new 2015 version. “The codes that are usually updated the most are the fire codes. They have to have alarms, and whether buildings have to be sprinklered. Currently, they're going to require that sprinklers be installed in all townhomes—that's in the works now in New Jersey,” says Voorhees.

In some states, the onus to complete inspections with an engineer is on the association. But, in New Jersey, the Department of Community Affairs (DCA), in tandem with local officials, handles the inspections process. Rather than hiring an engineer to complete an inspection, DCA officials visit and conduct the inspections process without a third party. But, many times local municipalities take the lead. “State administrative codes usually determine the suitability of a schedule for inspections, however, the responsibility of inspections is on counties and local authorities and they usually go on a case-by-case basis,” says Syed M. Shoaib, P.E., an engineering architect at Klein and Hoffman, an engineering and consulting firm in Philadelphia.

The DCA requires inspections every five years for all multifamily housing, which includes HOAs and condominiums. “They were initially intended for apartments, they wanted to make sure landlords kept their properties nice,” says Voorhees. Because the inspections process was not designed with condos and HOAs in mind, they can cause some administrative headaches, since the law treats residents more as renters than homeowners. The DCA will go into each unit and cite violations to the building that are in fact the responsibility of the unit owner. This can cause confusion among unit owners and the board, so many associations look to get an exemption from the inspection. “You can get an exemption from the DCA five-year inspections, based on whether you meet certain criteria,” says Voorhees.

Lines in the Sand

An exemption doesn’t mean you’re free of the burden of the DCA’s code requirements. On the contrary, you have to seek out an engineer who can vouch for particular criteria, many of which involve fire code. “Associations have to have an engineering firm sign and seal a letter that states that they comply with the requirements of the state. You can't have more than four units between fire separation walls, you have to actually show how the units are set up, you need to do drawings, you have to attest that the two-hour fire separation wall actually exists, and that the firewall goes all the way up to the roof and the foundation,” says Voorhees. The association also has to document any renters or empty units in the building for submission in order to get the exemption.

In the case that violations do occur for individual units, and the association is cited for it, there can be disputes between the two parties of who is responsible. Legally, the understanding of common elements is pretty cut and dry: the interior of the wall inward is the responsibility and property of the unit owner. Everything else outward, the structural elements, exterior, hallways, are all the responsibility of the association collectively. Usually with condo and HOA units, ambiguity comes into play with water intrusion in or around windows on the building envelope. “Normally, if it's the window itself, it's typically on the unit owner, but it depends on how the documents are drawn up. Typically, if it's the window itself that's leaking, it's the unit owner. If it's the flashing around it that's leaking because of the way it was installed, that's on the association,” says Voorhees.

Of course, there’s some wiggle room for interpretation on that, and boards should be responsive to unit owner complaints when it comes to building code issues. If a unit owner feels that he or she is not getting a proper response from the board about an issue related to a window flashing, for instance, the unit owner can take matters into their own hands.

However, that usually doesn’t mean going over the board’s head to building code officials. “The town doesn't like to get into that dispute, and the DCA usually doesn't step up and come in for one unit. That unit owner will document the damage and they can actually sue the association, or hire their own engineer, write the report and turn it into the association. I've never seen a township get involved. If the unit is selling, and they have to get a certificate of occupancy for the unit, that's a different story,” says Voorhees.

Out with the Old

Aside from routine inspections, New Jersey’s code comes into play often when renovations or capital projects are being done by an association or individual unit owner. “When you apply for a permit, the building, fire or electrical inspectors review the documentation or design provided with the permit to determine if it is in compliance with the code. The design shows what you plan to do. The inspectors then observe the work to determine if it has been done in compliance with the approved design. The developer usually obtains permits to build a community, the association obtains permits to work on the common elements or a homeowner applies for a permit to do work in their individual unit,” says Voorhees.

When an association wants to do work, the permitting and planning process has to be submitted by the engineer to the DCA. “Then they would submit the plans to the building code official for the town, he would review it and say, ‘Yes, that complies,’” says Gartenberg.

New Jersey does have environmental codes that specify what kind of land developments can be built on, how energy-efficient the building has to be, and what kind of systems a building must have in place. Of course, the state does not expect buildings to completely retrofit old systems for new ones at the drop of a hat.

“According to building codes, building or equipment determined to be unsafe by a code official is permitted to be restored to a safe condition. In the event restoration to a safe condition is unachievable, they must be replaced,” says Shoaib. If the old boiler you have is inefficient but functions and poses no danger to residents, there’s no requirement to have it replaced if it’s still in good working order. “New Jersey, depending on what kind of work, and the amount, may or may not obligate you to bring certain aspects of the building up to the current code,” says Gartenberg.

All in all, building code violations don’t tend to pose a huge threat for condos and HOAs. As long as associations keep up on their maintenance through a competent property manager, and move along on a necessary capital project program in a timely manner, it’s rare they’ll be hit by local or state officials with any surprises. If a violation does occur, the board and manager should take it seriously and get the repairs completed on time. Failure to do so risks very heavy fines in the tens of thousands of dollars. Especially with our homes, it’s better to be safe than sorry.    

Tom Lisi is the associate editor of the New Jersey Cooperator.

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