Before you read too far along here, let’s be clear the following is not intended to serve a legal advice and counsel. It is however, the opinion of an author with significant experience as an expert witness in design and construction matters. You should seek out professional legal counsel for any specific legal matters related to building design and construction issues.
Ask someone on the streets. Ask a contractor. Ask an architect or engineer. Ask most attorneys. Far too often, you can even ask a local Building Inspector. Go ahead and ask them what purpose does a building inspector provide in the design and construction of buildings. Chances are… you’ll be told it’s to insure that construction work gets designed and built properly. Don’t be surprised if you even see that on a local town website. Follow up that question and ask what purpose a Certificate of Occupancy serves and chances are good you’ll be told it’s a written certification that a building department has approved completed construction work.
Well… chances are also good you just got some bad information. And if you as a designer or builder attempt to use public agency approvals as a defense in a dispute, or if you as an owner try to use it to defend a liability claim, or if you use it in any other myriad of building dilemmas, chances are you’ll find your position to be at a disadvantage. Think I’m mistaken? Then ask a quick third question – How often do you hear about a public agency being successfully sued for design and construction problems on a building or injury event?
To understand this misconception better, it’s important to understand that a typical public agency adopts and is charged with enforcing a building code, typically a state wide code. Sometimes there’s a twist on this when a federal or other specialty code has authority in conjunction with the basic code standards. But these codes, usually thru state and/or federal legislation, are required to be administered and enforced by some form of public agency. For the most common building codes, it’s a local code enforcement jurisdiction established at the local or county level. Most of us know this outcome in the form of our local building department or building inspector’s office.
The next important consideration is to understand that the legislative intent of building codes is to provide standards for safety and the welfare of the general public. But legislation also provides additional intents, and this is the important part – intents that the public agency has immunity from liability for things such as errors in inspections, fraudulent inspections, negligent hiring of inspectors, and more. In other words, the legislative intent of codes is to provide standards for protection, and not guarantees for protection.
It is never the legal responsibility of a building inspector to design, engineer or assemble any building or construction work. That responsibility stays with the owner, design professional and/or contractor. It is intended under the law for the general public to never be liable or responsible for bad design and construction work, and public agencies such as a local building department are in fact a public agent representing the general public. Building departments, and these are key words – administer and enforce public regulations and procedures. They do not provide the actions necessary to establish compliance with such regulations and procedures in the form of planning and execution. In even simpler terms, it means building departments are not intended to serve as back-up engineers and architects, nor are they intended to serve as proof that construction work or building projects are completed in accordance with legal and code requirements. Those obligations remain with owners, designers and builders.
Don’t get me wrong. I view code enforcement as a critical part of building planning, construction and maintenance. But just as police officers in a public agency are not expected (by law) to insure they can stop every suspected criminal act before them, it should be understood that building code officials in a public agency role are held to the same standards and limitations that also prevent them from insuring that all code requirements are met. That responsibility remains with building owners, designers and builders. And with respect to a certificate of occupancy, check the wording on the document and more importantly the laws that regulate such documents. It’s most likely nothing more than a legal determination that the public agency, in the form of the building inspector’s opinion, that conditions have been satisfied enough to allow for ‘permission to occupy the building’.
Ken Pearl 11-13-13