Grandfathering

[Tom Rees]

I recently did an inspection and in my report I noted that the spacing at exterior guardrails was too wide, 5 inch gaps between balusters (metal). I see this often and recommend that they be replaced or repaired to meet the 4 inch standard. I don't think that they ever actually get repaired or replaced and consider this more of a warning than a required repair. The underwriter wants the guardrails replaced. The city inspector stated that safety issues are not grandfathered and they should be repaired or replaced. I am interested in other opinions on this matter. Is the city inspector justified in requiring they be replaced/repaired? I have had no dealings with the city and this was all relayed to me second hand. :confused:

[Rick Cantrell]

If the guards are deteriorated so badly they must be replaced, then the AHJ may require them to be replaced and comply with modern codes.
If they are in good condition, just spaced apart further that today's standard allows, then the AHJ should not require they be brought to today's standards.

[Mike Lamb]

The AHJ should be able to formally adopt and enforce anything they want.

[Raymond Wand]

Generally speaking something that was code 20 years ago would not have to be brought up to current codes.

[Rick Cantrell]

The AHJ should be able to formally adopt and enforce anything they want.

The key word there is ADOPT
IF it was adopted then it IS written.

[Joe Funderburk]

The only requirement in the IRC that requires a house to be brought up to today's code pertains to smoke alarms. With a couple of exceptions, whenever work requiring a permit occurs on a residential dwelling the smoke alarms have to be brought up to today's code.

Therefore, the city inspector was wrong unless there is a local ordinance that specifically addresses balusters (highly doubtful).

[Joe Funderburk]

I'm wondering how the city inspector got involved to begin with. :confused:

[Raymond Wand]

If there is a complaint the building inspection department is obligated to investigate.

[Joe Funderburk]

If there is a complaint the building inspection department is obligated to investigate.

Where do you find that written anywhere?

Scenario:

"Mr. Building Official, my toilet won't flush. Will you please come and figure out why? The plumber said it was OK when he installed it last month and he's just a liar!"

[Raymond Wand]

Case law.
If the town is contacted about an unsafe condition or something which is in the purview of the the building department they are legally required to act.

[Joe Funderburk]

Case law.
If the town is contacted about an unsafe condition or something which is in the purview of the the building department they are legally required to act.

I don't know about where you live, but here the IRC is king and it does not govern existing buildings in which no regulated activity is occurring. Even if permitted work was occurring on an existing home, the unaffected parts of the home are not regulated.

So, if anyone called me with a concern about an existing home and there was no permit active there, I'd politely tell them to pound sand.

[Raymond Wand]

And if there was an active permit? And would you still have that attitude?

[Chris McIntyre]

I The underwriter wants the guardrails replaced. The city inspector stated that safety issues are not grandfathered and they should be repaired or replaced.

In code language shall/must and should are very different.
Shall or must= It has to be done.
Should= It does not have to be done.

Sounds like the underwriter is saying it shall be replaced or no loan, which means it must be replaced.:)

[Chris McIntyre]

So, if anyone called me with a concern about an existing home and there was no permit active there, I'd politely tell them to pound sand.

Are you a Home Inspector???:confused:
I'm confused. Is it not a HI's job to address a buyers concerns about the condition of the house they are considering purchasing?
Do you only do home inspections where there is an active permit?

[Mike Lamb]

In many of the suburbs around Chicago, the local AHJ will do a pre-sale inspection which requires the seller to make certain upgrades.

Blue Island, a southwest suburb, made a seller remove all PEX water pipe and replace with copper.

Bellwood, a western suburb, had a seller replace all BX raceway with EMT, and replace incandescent closet lights with fluorescent strip lights among other things itemized in a nine page pre-sale inspection by the village. They even made them label the breakers in the electrical panel.

It’s ridiculous.

In other words, each AHJ can do whatever they want.

[Joe Funderburk]

Are you a Home Inspector???:confused:
I'm confused. Is it not a HI's job to address a buyers concerns about the condition of the house they are considering purchasing?
Do you only do home inspections where there is an active permit?

Home inspector and building official.

[Jerry Peck]

Home inspector and building official.

Being a "building official" means you are aware of the IPMC ... right?

By the way, are you "a" "building official", meaning that you have the Building Code Adminstrator certification, or are you "the" "building official", meaning that you are "the" final source of interpretation?

There is a HUGE difference between being "a" building official and being "the" building official ... anyone who is "a" building official as no more say in the matter than "a" local used car salesman ... ;)

[Joe Funderburk]

Licensed Building Official (CBO). AHJ. Licensed home inspector.

[Gunnar Alquist]

I see two possibilities.

1) As Mike Lamb already stated, some cities will require inspections at time of sale and require certain safety-related items to be brought current.

2) The deck was built without permits. The building department is requiring the deck to be brought current.

There may be other possibilities, but those are the two that I see the most.

[Joe Funderburk]

And if there was an active permit? And would you still have that attitude?

If there was an active permit for work on the DECK, then yes the AHJ would have the authority to require the deck to be upgraded. If, for example, the permit was for a bathroom remodel then there would be no authority to mandate changes to the deck.

[Jim Robinson]

The AHJ would not have that authority here, unless there is more to the story. If there was a complaint by someone, they may have the authority, but I doubt that that would even be enough.

[Jerry Peck]

Licensed Building Official (CBO). AHJ. Licensed home inspector.

Ah ... "a" building official ... ;)

[Ken Rowe]

When building codes are changed or updated nothing is "grandfathered". The municipality can choose to enforce the new codes on existing buildings if they choose to do so. Here in MN both Minneapolis and St Paul and several surrounding cities require listing inspections. Some performed by the AHJ and some by contractors. All these cities have different requirements for their inspections. Some only require hard wired smoke detectors and some go by the National Maintenance Code. I've even seen some force the replacement of an old roof (not leaking or damaged, just old).

Underwriters can choose to require anything to be repaired or replaced in order for the loan to go through. I was all set to do a reinspection today because the underwriter wanted documentation that a shut off valve had been installed on the gas furnace in a garage. Cancelled at the last minute because the contractor finally emailed the paperwork.

[Harold Doughty]

Underwriters can be funny. I recently refinanced my home and was required to repair two spots in the ceiling. One was where my father-in-law recently broke the drywall while helping to add extra insulation in the attic and the other was just a discolored spot in the ceiling where the previous homeowner used a different color of paint when they repaired the damage caused by a roof leak.
So, you see, it doesn't even matter what the AHJ wants in this situation, it only matters that the underwriter wants it done. No do, no loan...

[Raymond Wand]

Where does the underwriter get off demanding repairs like that which have no affect on habitability/safety?

[Bill Hetner]

Hi I have a house in Edmonton ab canada and yes I had the same problem with the railing on back deck. some one had called the building inspectors about a basement suite and then they saw the back deck, it is required to be up grade and it has been done. no point about arguing about safety. if they require it bite the bullet and just do it. better safe then sorry in this regards. if they do see something that is not right you will be required to fix it even if it is just paint or some thing simple. sometimes it is better to do the right thing and not lose sleep over it

[Aaron Miller]

R102.7 Existing structures. The legal occupancy of any structure existing on the date of adoption of this code shall be permitted to continue without change, except as is specifically covered in this code, the International Property Maintenance Code or the International Fire Code, or as is deemed necessary by the building official for the general safety and welfare of the occupants and the public.

COMMENTARY: Buildings that exist legally at the time the code is adopted are allowed to have their existing use and occupancy continued if the use or occupancy of the structure was also legally in existence. This means that as long as a structure or building remains in a safe and sanitary condition it need not be upgraded to meet the more current standards. However, any new construction, addition or remodeling will require such work to conform to the requirements of the new code. A change of occupancy of the building also will force the building to conform to the new standards.

The existence of a building prior to the adoption of a new edition of the code does not grant it the status of a legal existence. A building is thought of as being “grandfathered” under prior rules and not needing to be brought up to current requirements when there are records to show that it was constructed to meet the regulations of the jurisdiction in force at the time it was built. The most common way to demonstrate legal compliance with the construction codes of a community is through the public records. Copies of past building permits can be researched at the jurisdictional archives. Upon discovery that a building does not have a legal existence, corrective actions will be needed in order to bring the structure into compliance with the regulations of the jurisdiction at the time the building was built.

[Aaron Miller]

Also consider that there is case law from a Bakersfield, CA dispute which upholds the AHJ requiring that a building owner comply retroactively with a code that was not even in existence when the building was built. The CA supreme court ruled, "It would be an unreasonable limitation on the powers of the city to require that this danger be tolerated ad infinitum merely because the hotel did not violate the statutes in effect when it was constructed 36 years ago.":D

[Phillip Norman]

Nice conversation. Great way to start my day.

[Patrick McCaffery]

As a Home Inspector the primary concern is to recommend that the five inch spacing is unsafe and may allow a small child to crawl through and become injured.

[Jerry Wessels]

The International Residential Code is a code for new construction.

The International Property Maintenance Code (IPMC), if a jurisdiction adopts it, governs exiting stucutures:

101.2 Scope. The provisions of this code shall apply to all
existing residential and nonresidential structures.

Regarding handrails and guardrails the IPMC reads:

304.12 Handrails and guards. Every handrail and guard shall
be firmly fastened and capable of supporting normally
imposed loads and shall be maintained in good condition

SECTION 307
HANDRAILS AND GUARDRAILS
307.1 General. Every exterior and interior flight of stairs having
more than four risers shall have a handrail on one side of the
stair and every open portion of a stair, landing, balcony, porch,
deck, ramp or other walking surface which is more than 30
inches (762 mm) above the floor or grade below shall have
guards. Handrails shall not be less than 30 inches (762 mm)
high or more than 42 inches (1067 mm) high measured vertically
above the nosing of the tread or above the finished floor of
the landing or walking surfaces. Guards shall not be less than
30 inches (762 mm) high above the floor of the landing, balcony,
porch, deck, or ramp or other walking surface.
Exception: Guards shall not be required where exempted
by the adopted building code.

As you can see, while guardrail height is covered by the IPMC, meaning that all guards shall be at least 30 inches in height, there is no mention of the spacing of balusters. As a building inspection supervisor (City of St. Louis), I would expect an inspector to allow an existing 5" spacing if the balusters are otherwise sound.

To me the term "grandfathering" is not very useful when speaking of the codes. If a jurisdiction had adopted the IPMC, structures must meet its basic mandates. If a structure does meet the requirements of the IPMC, then it is code compliant. If it does not comply then a repair must be made. When a repair is ordered, the IPMC refers the reader to the International Building Code (which when them refer to the IRC for a residential repair).

Just a point of view from a municipal building inspector.

[Aaron Miller]

To me the term "grandfathering" is not very useful when speaking of the codes. If a jurisdiction had adopted the IPMC, structures must meet its basic mandates. If a structure does meet the requirements of the IPMC, then it is code compliant. If it does not comply then a repair must be made. When a repair is ordered, the IPMC refers the reader to the International Building Code (which when them refer to the IRC for a residential repair).
Just a point of view from a municipal building inspector.

Agreed, and an appropriate point of view from the municipal angle. As independent inspectors, in my opinion, we are obligated to fully inform home buyers regarding the added degree of safety that accrues with compliance to the most current versions of the applicable building and electrical codes. That is why all home inspections are based upon and require discussion of the building codes; home inspector organization and state-promulgated SOP hype notwithstanding.

[Carl Morello]

I work in the insurance field and we cover many apartments and condo HOAs. I make a big deal about baluster spacing, especially on decks. My understanding, (discussion with many building officials), is that the building is grandfathered to the code the building was built to. When repairs and improvements are made, then the building may need to be brought up to current code. Is the building you inspected changing ownership? If so, that could be a good reason for the city inspector to require the upgrade. We have to get these improvements done any way we can. We make recommendations all the time to make code improvements even when the city may not require. I'm adamant about spacing greater than 6 inches. We had a claim where a small child fell through a 7 inch spacing.

[Harold Doughty]

Where does the underwriter get off demanding repairs like that which have no affect on habitability/safety?

Raymond,
Simply because they hold the check. I thought it was ridiculous too, especially since the appraiser theoretically had already considered it in his report and the house value was way more than needed to support the refi.
Since I planned to fix it anyway, just went ahead and complied.

[Stuart Brooks]

I note the baluster spacing is greater than allowed by current safety standards and recommend upgrading as part of future home improvements and maintenance. I do not list it as a repair. That's how the underwriter got into it. He or she went through the recommended repairs. Especially if the report provided a repair summary

[michael avis]

I would write this up as non-compliant with current codes and leave it at that. As a HI I don't want to get involved in a pissing contest about who has jurisdictional control; that's beyond my scope. Whether this situation is grandfathered or not goes beyond the scope of typical HI agreements.

The capacity for pedantic argument in this forum is truly amazing.

As long as there is nothing structurally wrong with the balusters and their only flaw is failure to comply with current codes I don't see where it is the purview of the HI to open a can of somebody else's worms.

[Joe Funderburk]

Ah ... "a" building official ... ;)

Also "the" building official. :D

[Don Burbach]

I personally hate the concept of 'Grandfathering' when mentioned in the context of safety. I explain that one of the functions of building codes is that they evolve to make us safer in the same manner that seat belts, and then shoulder belts evolved and became standard on cars in the 70's through 90's.

As home inspectors we should point out safety issues in homes in the same manner that I wouldn't be comfortable driving my classic early 60's Chevy simply because it didn't come with seat belts. Our feelings regarding safety should evolve for our own protection and longevity.

If I am prodded enough regarding grandfathering( by either buyer or Realtor ), I might even say that my Grandfather fell down a stairs like this. They may not believe me, but they always get my message.... then they see the reason for my parable.

[Jim Luttrall]

Where does the underwriter get off demanding repairs like that which have no affect on habitability/safety?

Underwriters can demand anything they want and usually get it. Do they have any legal authority? No. Do they have the financial authority? You betcha! If they had been doing a proper job, there would not have been a financial meltdown due to bad loans to undeserving people.
Bottom line is that anything that affects the value of the loan or collateral is fair game... or don't take their money.

[Jerry Peck]

Also "the" building official. :D

Okay, that was what I was asking. :)

You are "the" "building official" for where?

[Richard Burkard]

There are dozens of new code requirements that many older homes do not contain. As someone said previously, a home that recieved a certificate of occupancy years ago, are still legal, unless a new code has been enacted to enforce compliance with a certain new code. There are also retro-active codes, such as the smoke detector code. You add a room and now you have to add smoke detectors to evevery bedroom and level. Listed below are items that older homes may not comply with.

1. Tempered glass windows in baths and where required and doors.
2. Smoke detectors.
3. Carbon monoxide detectors.
4. Fuses in electrical panel.
5. Knob and tube electrical wiring.
6. Egress/escape windows in bedrooms.
7. Lead paint.
8. Garage door opener safety stop.
9. Guards height and picket spacing.
10. Stair rail heights
11. Stair geometry.
12. Stair landings.
13. Ramps slope and landings
14. Asbestos
15. Plumbing systems.
16. Shower tile on green board.
17. Garage doors that don't meet the current wind loads.
18. Insulation values?
19. Fire sprinkler systems.
20 Arc fault and CGFI circuits.
21. CSS gas pipe not bonded to the electrical system.
22. escape door sizes.
I could keep going.

[Joe Funderburk]

There are dozens of new code requirements that many older homes do not contain. As someone said previously, a home that recieved a certificate of occupancy years ago, are still legal, unless a new code has been enacted to enforce compliance with a certain new code. There are also retro-active codes, such as the smoke detector code. You add a room and now you have to add smoke detectors to evevery bedroom and level.

Not only are smoke alarms required to be upgraded when adding a room, but when doing any work that requires a permit (with certain exceptions). Upgrade the service, make changes to the panel, remodel a bathroom or kitchen, etc.? Bring the smoke alarms up to code.

"R314.3.1 Alterations, repairs and additions. When alterations,
repairs or additions requiring a permit occur, or when
one more sleeping rooms are added or created in existing
dwellings, the individual dwelling unit shall be equipped with
smoke alarms located as required for new dwellings.
Exceptions:
1. Work involving the exterior surfaces of dwellings,
such as the replacement of roofing or siding, or the
addition or replacement of windows or doors, or the
addition of a porch or deck, are exempt from the
requirements of this section.
2. Installation, alteration or repairs of plumbing or
mechanical systems are exempt from the requirements
of this section."

P.S. Smoke alarms are referred to as "smoke alarms" in the code, not 'smoke detectors'.

[Aaron Miller]

I personally hate the concept of 'Grandfathering' when mentioned in the context of safety. I explain that one of the functions of building codes is that they evolve to make us safer in the same manner that seat belts, and then shoulder belts evolved and became standard on cars in the 70's through 90's.

As home inspectors we should point out safety issues in homes in the same manner that I wouldn't be comfortable driving my classic early 60's Chevy simply because it didn't come with seat belts. Our feelings regarding safety should evolve for our own protection and longevity.

If I am prodded enough regarding grandfathering( by either buyer or Realtor ), I might even say that my Grandfather fell down a stairs like this. They may not believe me, but they always get my message.... then they see the reason for my parable.

Glad to hear there is someone else on this forum capable of thinking this through.:)

[Scott Patterson]

Glad to hear there is someone else on this forum capable of thinking this through.:)

Yep! Ya, can't grandfather safety! As a home inspector if you feel it is a safety issue you need to report it as such. One of my most favorite phrases I use is "For increased safety _______________ should be added or installed"......... I think that about 75% of my reports will have this or a similar phrase in them.

[Dallas Williams]

Yep! Ya, can't grandfather safety! As a home inspector if you feel it is a safety issue you need to report it as such. One of my most favorite phrases I use is "For increased safety _______________ should be added or installed"......... I think that about 75% of my reports will have this or a similar phrase in them.

I also agree. I do multi- family inspection reports fairly often and this issue is common there as well. If work is not being done to merit replacement and the railings are sound then I always mention the spacing and heights. Some properties will put them in the replacement reserve schedules for replacement over time.

And Scott- I could not help but notice that you need to do another post to round out your count!

[Richard D. Fornataro]

The only requirement in the IRC that requires a house to be brought up to today's code pertains to smoke alarms. With a couple of exceptions, whenever work requiring a permit occurs on a residential dwelling the smoke alarms have to be brought up to today's code.

Therefore, the city inspector was wrong unless there is a local ordinance that specifically addresses balusters (highly doubtful).

Joe,

That's how we started in New York state 12 years ago.

"Any interior work requiring a permit, you shall install hardwire smoke detectors throughout the premises."

This caused a severely angry reaction from home owners undergoing a bathroom remodel whom were compelled to now expend considerably more funds to comply with the state requirement of installing hardwire smoke detectors throughout the premises.

Then the state, in its usual correction of a "rush to judgement code" took some teeth out of the requirement by instituting exceptions that indicated that if the property did not have an "attic, basement or crawlspace" such a requirement was unenforceable.

Todays iteration of that requirement has further been weakened by the exception that unless you "remove wall and/or ceiling coverings, exposing framework," such a requirement is un-enforceable.

The original intent was to have hard-wired smoke detectors installed in every property.

The intentions were good but not well thought out as many laws and codes enacted by New York state.

We won't discuss NY's newly enacted Safe Act which only impacts law-abiding gun owners and will not deter a single criminal from using a firearm.

But I digress.

Back to the original post.

The circumstance described would officially be labeled as "pre-existing, non-conforming."

There is no such term as "grand-fathered" in the code.

Every state is probably different but basically, the government cannot compel you to update a property every time the code changes.

Unless of course, an AHJ deems such a circumstance to be "hazardous to the property or its inhabitants.

As an example, I, as an electrical inspector and code enforcement officer perform numerous "reconnect" inspections as required by the utility whenever a service needs to be energized.

If the open conductors emanating from the riser cable are within 3 feet of an opening, a clear violation of NEC 230.9, I cannot compel any correction if the connections to the overhead are still intact.

If, however; those connections are severed, then I can require relocation of such to facilitate compliance with NEC 230.9.

Again, every state is probably different.

I just wanted to inject my observation of similar circumstances and was compelled by your reference to smoke detectors to comment.

[Richard D. Fornataro]

As it pertains to the comments comparing "the" official to "a" official.

A good inspector in the field has to consider themselves "the" official.

If I left interpretation of the code up to my supervisors, the meetings would be endless, the conclusions inconclusive and the results of personnel unwilling to be decisive would ensure that nothing ever got resolved.

As long as you adhere to and compel that which can be substantiated and corroborated by code language, you are "the" official.

That being said, many "officals" overstep thier authority and demand actions that they do not have the authority to compel.

[Jerry Peck]

If I left interpretation of the code up to my supervisors, the meetings would be endless, the conclusions inconclusive and the results of personnel unwilling to be decisive would ensure that nothing ever got resolved.

As long as you adhere to and compel that which can be substantiated and corroborated by code language, you are "the" official.

You have mixed efforts on the above - one does not interpret what is stated or has been established. "The" code official makes any interpretations which are needed (and there really are not that many gray areas which need "interpretation") and for those areas which have an interpretation, the inspector is no making an interpretation, the inspector is enforcing the code.

Too many inspectors think that THEY are "the" code official and have the authority to make interpretations - they are incorrect as ONLY "the" building official has that authority.