What To Do When My Home is Condemned For Alleged Code Violations or Based on Claims That It Is Unsafe or Uninhabitable
This Article is written by Owner’s Counsel of America for general informational purposes only. It is intended to assist landowners in understanding some of the basic aspects of condemnations of property resulting from code violations or claims that the property is unsafe, uninhabitable or constitutes a public nuisance. This Article is not to be viewed as providing legal advice or to be considered as a substitute for consulting with an experienced real estate, property rights or eminent domain lawyer on the matters covered herein.
The Term “Condemnation” Can Have Two Meanings
Confusion is often created regarding the meaning of the term “condemnation.” On one hand, the term means essentially the same thing as “eminent domain,” i.e. the power of a governmental body to take private property in order to build public projects, such as highways, roads or other necessary infrastructure.
On the other hand, the term can also mean the power of the government to take properties that have been deemed not in compliance with government codes, standards or regulations, or properties that have been determined to be unsafe or uninhabitable. While OCA lawyers do not generally represent property owners in this second category of condemnation takings, this article is written to offer some helpful tips to landowners who may be faced with this issue.
Code Enforcement Provisions
Most cities, towns and counties within the U.S. have adopted building codes that establish standards for properties, aimed at ensuring the health, safety and general well-being of their occupants. The specificity of building codes range from requirements for ensuring a floor can bear an adequate load to the operational functionality of the HVAC and utility systems. Code provisions must generally be in writing and available for review by any member of the public that needs to reference them.
Some jurisdictions focus on penalizing violators of these codes and standards, whereas others adopt more cooperative models designed to help owners bring their properties into compliance. Additionally, some jurisdictions rely primarily on residents to report possible violations, while others take a more proactive approach and conduct windshield surveys or other inspections on a regular basis.
When a municipality receives a code violation complaint, a city inspector will generally visit the property to verify if the complaint is valid. If it is, the property owner will be notified about what corrections are needed and how long they have to make them. If the property owner fails to take the proper steps to reach code compliance, monetary assessments and penalties may be imposed, and eventually the property may even be condemned by the government.
While the strictest attention to code compliance is paid to newly constructed homes, increasingly these code provisions are being used to target older homes that may be in a state of poor repair or condition, or possibly located in dilapidated or deteriorating neighborhoods. They have also been used to target properties in what are termed “blighted” areas. Abandoned homes are particularly vulnerable to code non-compliance claims.
Claims of Public Nuisance, Unsafe Conditions or Uninhabitable
Most code violations do not pose a health threat or create a nuisance to others. However, on occasion the code non-compliance may be deemed so serious that it does reach a point where the structure may be deemed unsafe or unfit for habitation. This can happen when the house can no longer support sanitary living conditions. For instance, if the plumbing is not working or the home is allowed to accumulate so much clutter as to cause infestations. Houses can also suffer from black mold, particularly in areas prone to flooding.
Once again, if necessary repairs are not made within a prescribed period of time, the local government may seek the right in court to take over (or condemn) the property, which could possibly lead to an actual demolition of the structure.
Payment of Just Compensation
In most instances, some form of just compensation is due for the taking of property, even if taken as a result of code violations or assertions that the structure is unsafe or uninhabitable. However, in many of these cases landowners do not receive fair compensation because (1) in the case of a building structure, the cost of demolition often reduces the money that they would otherwise receive or (2) the poor condition of the property or structure may result in little, if any, compensation being due.
However, in 2018 OCA member James Burling and the Pacific Legal Foundation did prevail in a case where they represented David and Lourdes Garrett. The Garretts had renovated a dilapidated townhouse that they bought from the city of New Orleans. But their dream quickly turned into a nightmare when—barely four months after they purchased the building—the city suddenly sent a wrecking crew and demolished it, after which they presented the Garretts with a $11,000 demolition bill. The Garretts had previously received no notice, no hearing, and no compensation. Although a federal district court dismissed their claims, PLF won an appeal in the federal circuit court which vacated the earlier ruling and said all of the Garretts’ claims can and should be heard in federal district court. The 5th Circuit’s full opinion can be read here.
Some Tips and Advice
If you are a property owner facing the possible condemnation of your property as a result of code violations or a determination that it is an unsafe structure, below are some steps you may wish to take to protect yourself:
- Retain a good lawyer who is familiar with the local code provisions, regulations, and ordinances that the governmental body is relying on to claim that your property, home or building structure is not in compliance.
- If you cannot afford a lawyer, familiarize yourself with the relevant code provisions, regulations and ordinances that are being relied on by the government officials to assert that your property or building structure is not in compliance. You want to make sure that the government officials are accurately interpreting these provisions, as written, and also that they are being properly applied to your particular situation. Also, be aware that sometimes older structures are “grandfathered” in, meaning they may be exempted from having to comply with more current code requirements. Most code provisions can be found online or by visiting the municipal department that is responsible for enforcing them. The Notice of Violation should tell you precisely what code provisions you are being accused of violating.
- Most code provisions can only be enforced against a landowner according to a specific process that involves the government complying with certain requirements and procedures to ensure that property rights are not being taken without providing due process. These requirements generally involve making sure the landowner (1) receives proper notice of the violation (2) an opportunity to correct the violation within a reasonable time period and (3) the ability to appeal a violation determination, if the owner disagrees with it. Make sure you understand the details of the process the government needs to follow.
- If you are not in compliance, do not simply ignore the citations or notices you receive, thereby subjecting yourself to additional fines and assessments. These monetary penalties can often create an additional financial burden that makes it virtually impossible for the landowner to take care of the alleged problems. Also, unpaid fines and assessments can lead to a lien being placed on your property which may impact your ability to sell or transfer ownership.
- If at all possible, take meaningful steps to fix and repair your property, and make sure to document your efforts as proof that you are making a good faith attempt to comply. Documentation can include receipts for work performed, photos of the before and after condition, etc. If you are given an opportunity to have a hearing on your matter or case, all of this information will be useful in defending and protecting your property rights.