Grandfathering of Existing Buildings

I often get questions by owners and/or contractors during forensic inspections regarding damage to building structures and the need to upgrade to the current building codes. Contractors and home inspectors may reference the building codes as justification for the need to unnecessarily upgrade the various building systems (structural, mechanical, electrical, and plumbing) during the course of repairs due to storm related damage or deterioration as well as a real estate transaction. The confusion surrounds grandfathering related to older codes.

The term “grandfathering” is essentially a legal doctrine concerning the use of a property that was in legal existence prior to a change in building codes or zoning ordinances. Since older structures do not often conform to updated zoning and codes, “grandfathered in” generally provides for the legal use of a pre-existing “non-conforming” structure.

In the realm of building forensics and inspections, there can be much confusion concerning the application of building codes to older structures. For the purpose of this discussion, the focus here will be on residential construction. With a sufficient amount of time and research, it could be determined which codes, if any, were in effect for a particular house when it was originally constructed. But who is the governing authority for code enforcement?

To understand enforcement, we need to look no further than the codes themselves. At the time of this writing, the 2015 International Building Code (IBC) and the 2015 International Residential Code (IRC) were the most recently published editions of the governing building codes. Other codes also exist, but for the sake of this discussion, the 2006 editions of the IBC and IRC will be referenced. In the “Adoption” paragraph of the “Preface”, the IBC states that “The International Building Code is available for adoption and use by jurisdictions internationally.  Its use within a governmental jurisdiction is intended to be accomplished through adoption by reference in accordance with proceedings establishing the jurisdiction’s laws.” So, the building codes are written to be adopted and enforced by governmental jurisdictions, namely the building official and inspectors of the municipality (city, county, or state). A contractor or private home inspector has no enforcement authority when it comes to building codes.

It is not the intent of a typical home inspection to be a thorough code-compliance inspection. For most older homes, a code compliance inspection is impossible as the inspector cannot see what is hidden inside the walls and would normally not know the governing building code at the time of original construction. References may be made to the currently enforced codes, but the new-building codes are intended for new construction and not to be applied retroactively. An inspection and report provided by a private home inspector does not obligate either party in a real-estate transaction to address anything written in the inspection report. Rather, a home inspection is to provide information about the condition of the house, particularly items that concern life, health, and safety, which is the true intent of the building code. As is stated in IRC Section R101.3, the “purpose of this code is to provide minimum requirements to safeguard the public safety, health, and general welfare …”

The newest codes represent the latest technologies, materials, methods, and approaches to better protect the health and safety of the general public. But their application in older homes may not be practicable or possible. Ultimately, the inspection merely provides information to the client.  The client decides what actions to take, if any.

– Doug Stephens, PE

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