Notice to Cure! Dealing With Building Violations

Notice to Cure!

 Despite the due diligence of boards and property managers, building code  violations can occur during routine inspections—be it a faulty pipe, broken step or rusted fire escape. It is the speed and  accuracy of addressing these infractions which is critical, although frequent  problems are often overlooked, leading to costly headaches.

 Common Offenders

 “One of the most common building code violations that I see relates to porches,” says Chicago-based attorney Bradford Miller. “Ever since the deadly porch collapse that occurred a few years ago, the city of  Chicago has been cracking down on unsafe porches. Other common violations  include improper signage—or no signage at all—for management company and owner information, no permits on file for work done,  and safety issues related to fire escapes.”  

 All boards and property managers must adhere to rules and regulations clearly  spelled out in the Chicago Building Code, explains Department of Buildings’ spokesperson Susan Bisno Massel. “Department of Building inspectors determine or write up violations. In the case  of most condominiums and co-ops, it would likely be one of the department’s Conservation Inspectors who inspect existing buildings versus new  construction,” she says. “The vast majority of the complaints investigated are received from city  residents who phone them into 311.”  

 The list of most cited condominium and co-op violations also includes masonry  repairs, wall repairs, obstruction to entry and exit ways, working without a  permit and failure to comply with the AIG elevator inspection program for  properties located in the central business district. “If the city deems a condition hazardous, it will file its case in the Circuit  Court as opposed to at an administrative hearing,” says Attorney Michael Shifrin with the Buffalo Grove-based law firm of Kovitz  Shifrin Nesbit. “The city also takes violations of the fire code very seriously, such as  malfunctioning smoke detectors and exit signs,” he adds. “These fines can be very high.”  

 The purpose of building code violations, and their enforcement, is not merely to  maintain a building in proper working order, but to mitigate risk. “A board may incur liability for failing to remedy a code violation in the event  that a person is injured by a condition that is the subject of the code  violation,” says Attorney Mark Roth with the firm Orum & Roth. “Take for instance a situation where a building is cited for loose or crumbling  masonry. The board ignores the citation or takes no action to correct the  condition. A pedestrian is struck by a falling brick,” he continues. “The injured party’s attorney may bring a cause of action against the Board for willful conduct in  failing to repair the property in a timely manner.”  

 Who is Watching Who

 Since most boards and managing agents want to be in compliance to avoid  liability and reduce the risk of paying fines, the majority do their respective  best to stay ahead of the curve. The problem is that an area of building  checked weeks or months earlier could fail for a number of reason and the City  of Chicago, and surrounding municipalities, are watching.  

 “The vast majority of municipalities have departments devoted to building and  zoning issues. These departments are charged with authority to ensure that  construction activities comply with existing building code and zoning  requirements,” says Roth. “These departments also have authority to inspect existing buildings, and to  issue citations for non-compliance with existing building code issues.”  

 While most building inspectors are employees of the municipality, Roth notes  that smaller municipalities often subcontract this work to third party  contractors. Either way, violations are written, especially during  construction. “In the event that a building is under construction or renovation, there are  required inspections that must be performed prior to additional work being  performed,” says Roth. “For example, a building inspector must inspect any plumbing work, electrical  work and insulation on a construction project before the interior walls are  closed. Similarly, these building inspectors have authority to inspect existing  buildings for any code violations, even when no construction activities are  taking place.”  

 When it comes to education, Miller said proactive board members trying to  understand building code regulations can be easily confused as there is a steep  learning curve. “I know there are some free pamphlets available in the lobby at 400 West Superior  in Chicago for Chicago building code violations but unfortunately, I do not  believe there are other city/state resources out there to help buildings  navigate the process,” he says. “In Chicago, you can try calling the Department of Buildings but most people have  found it to be frustrating and time-consuming. Therefore, most buildings rely  on their attorney and their contractor or engineer they hired to address the  violations with the city.”  

 While perhaps a tempting excuse, a board or manager that tries to plead  ignorance or tries to pass the blame to subcontracted architects or engineers  is not a viable defense. “As licensed design professionals, they have an obligation to understand the city’s building code and associated processes, as well as those of any municipality  in which they work,” says Massel.  

 Receiving Bad News

 While it is not pleasant to receive notice of a building violation, it is a  common occurrence which seasoned board members and property managers should  expect. There are protocols in place to lessen the blow and streamline  corrective efforts.  

 “Condominium associations typically receive a notice through their registered  agent or property manager informing them of allegations pertaining to a code  violation and requiring the association, or its legal representative, to appear  at the Department of Administrative Hearings on a particular day and time for a  hearing,” says Shifrin.  

 The first question a board usually has is when the penalty accrues and if there  is ways to mediate problems before a check is written to the city. “Typically, associations can avoid the imposition of fines if they can repair any  code violations and bring themselves into compliance before the initial hearing  date,” says Shifrin. “The severity of the violation can impact the extent of time given by the City of  Chicago for an association to correct or repair a known violation. As a general  rule, the quicker an association can repair a violation, the greater likelihood  the city will waive any fines.”  

 When a dispute arises regarding a board accusing the property manager of failing  to notify them of the building code violation, it can become a tricky and  expensive game of “he said, she said.” This argument is usually reserved for the courts. “It is difficult to determine the extent of liability a manager may incur should  the manager fail to notify the board of a violation within a certain amount of  time as this is more appropriately a question of fact to be decided by a judge  or jury,” says Shifrin. “Both the property manager and the board can greatly reduce their potential for  liability by acting promptly to repair any known code violations. Failure to  quickly repair violations can lead to the imposition of large amounts of fines.”  

 Going to Court or Going to Trial?

 Even if a proactive board or manager is addressing the violation, when a  building receives notice, it states that the owner, or property manager on  record, must appear for a hearing. While larger municipalities generally hold  their building code violation hearings in their town hall, Roth explains that  hearings on building code violations normally occur before an administrative  law judge. In the city of Chicago, for example, building code violations are  heard in the Daley Center or at 400 West Superior Street. Whereas for  violations in unincorporated Cook County, the hearings are held in the county  building in downtown Chicago.  

 “The municipality is represented at the hearing by the municipality’s attorney. It is important for any significant violations for the association  or cooperative to also be represented by an attorney to level the playing  field,” says Roth. “Most violations are negotiated between the municipality’s attorney and the community association’s attorney. The most common result is that the community association agrees to  remedy the code violation within a specific period of time, if a code violation  actually exists, and to pay a negotiated fine.”  

 The case is then continued until a court ordered date is offered for compliance.  An inspector will then revisit the property to insure that the violation has  been satisfied. If it has, the case is usually dismissed and the fine is paid. “Attorneys often have built a rapport with the opposing attorney, and should be  versed in the underlying alleged violations. Attorneys are thus generally able  to negotiate settlements which are more favorable than if the community  association attempted to negotiate with the municipality itself,” says Roth. “Further, community associations are usually incorporated as not-for-profit  corporations. A corporation, even a not-for-profit corporation, must as matter  of law be represented by an attorney licensed in the state of Illinois in any  court proceeding.”  

 In rare cases, the building code violation is not settled and the case proceeds  to trial. Roth notes that in this instance the municipality will call the  building inspector as a witness to testify to the alleged violation. The  community association may then call its witnesses to refute the building  inspector and present evidence through an expert witness.  

 “In our experience, in a close call a tie goes to the municipality. You must  remember that the administrative law judge hears many cases each day, and that  same building inspector may testify before the judge numerous times each week,” says Roth. “The inspector’s testimony generally carries a significant amount of weight in the  administrative law judge’s eyes.”  

 “Board members should make sure that general maintenance is performed on the  property according to the Chicago Municipal Code, especially as it relates to  safety issues,” says Massel. “In addition, it is vital to insure that the on-site building engineer has a  thorough understanding of the Chicago Building Code and can vigilantly enforce  it as they can make sure that building tenants/occupants obtain the proper  permits for work done in their units/homes.”  

 In the end, keen oversight coupled with building code knowledge will avoid most  trips to court and more often than not save unnecessary expenditures in the way  of steep fines.   

 W.B. King is a freelance writer and a frequent contributor to The Chicagoland  Cooperator.  

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