Urban Legends of Construction Law # 47 -
Urban legends are often fascinating in their resilience. Some have a grain of truth, while most are complete flights of fancy. Some legends are entertaining, while others can be quite damaging if believed. The construction industry is not immune, and there are a number of urban legends widely accepted by builders, contractors, judges, and the general public.
by Kelly G. Richardson, Esq.
Urban legends are often fascinating in their resilience. Some have a grain of truth, while most are complete flights of fancy. Some legends are entertaining, while others can be quite damaging if believed. The construction industry is not immune, and there are a number of urban legends widely accepted by builders, contractors, judges, and the general public.
One of the most pernicious myths to plague the industry regards governmental responsibility. It takes a number of forms, but all centers around a misunderstanding of the legal effect of a building permit, a Certificate of Occupancy, or the building official's approval of construction in the field. Belief in this is embodied in a number of common statements: "How can it violate Code, since it was signed off by the inspector?"; "The C of O was issued, so any technical Code violations are approved"; and, when all else goes wrong and construction errors are found, "This is what we pay our permits for, the building department must be held responsible."
In a recent defect trial, a top executive for a major builder testified in open court, "Why would we (inspect a particular structural element), that is what we have the building inspector for."
The dispatch of these resilient myths begins in the International Building Code (IBC).
Inspector's "OK" means it is OK?
Can we rely upon building department inspections to prove that construction work is free of defect, or that the apparent code violation was authorized? Not according to IBC §109.1 (formerly UBC §108.1), which states, in part, that "approval as a result of an inspection shall not be construed to be an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction."
Certificate of Occupancy means it is OK?
At least we can count on a C of O for some defense from liability, right? Not according to IBC §110.1 (formerly UBC §109.1), which states that "issuance of a certificate of occupancy shall not be construed as an approval of a violation of the provisions of this code or of other ordinances of the jurisdiction."
Building Departments have some accountability, so it is OK?
There is no ability to hold building officials accountable for failing to catch defects. As per Government Code Section 818.6, "a public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection ... for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety." This is reaffirmed by the Code itself, at IBC §104.8 (formerly UBC §104.2.6).
Building inspectors do not have the resources to accomplish more than spot inspections, and cannot fairly be expected to substitute for proper project management and quality control. Their shortness of resources often means that inspectors have to make decisions on where to allocate their time. Is it controversial to suggest that building officials actually spend less time per capita on major residential developments than on the amateur's remodel/addition? In fact, inspectors often rely upon a professional developer, and pursue a far less rigorous inspection.
In summary, building officials have immunity, and cannot be held accountable to the building industry for inadequate or even careless inspections. Such inspections specifically do not provide a defense to negligence claims. However, so many in the industry still believe they are adequately protected by the local building and safety department.
So where does the industry look for protection from deficient work? Look right in the mirror. We cannot blame the building department. Try as we may, we can't blame the insurance carriers, trial lawyers or construction lenders. Quality control, like charity, begins at home.
The answer comes from increased quality control, and an abandonment of some of the tired old urban legends that give the false sense of security. Instead of relying upon an understaffed and immune building and safety office, rely upon a properly staffed project management team. Instead of criticizing the plan checkers' failure to catch design flaws, employ a high quality design team. Instead of venting frustration at subcontractors who fail to properly interpret sparse design documents (the "builder's set"), obtain fully detailed construction documents.
Instead of focusing on making it harder to sue for defects, focus upon making it harder for defects to get by your management.
Lastly, instead of an industry in retreat, advance to a "new" (truly though, an old) model of construction and development.
Kelly G. Richardson, Esq., is the Association's General Counsel, and can be reached at 626-449-5577 or by email at KRichardson@RH4Law.com
By Kelly G. Richardson, Esq.
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Date Posted: 6/23/2006
Number of Views: 649
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