(Editor's Note: Les Scher is a California back-to-the-lander who also just happens to be a practicing attorney and an expert on property deals. Mother Earth News is proud to present this second excerpt from his book, Finding and Buying Your Place in the Country, a first-rate, comprehensive layman's guide to what is probably the most important purchase you'll ever make. This chapter is excerpted with permission from MacMillan Publishing Co. Copyright 1974 by Les Scher.)
I sometimes think men do not act like reasonable creatures, when they build for themselves combustible dwellings in which they are every day obliged to use fire.
—Benjamin Franklin in his letter of 1787 entitled Building Acts Anticipated
Building and health codes, like zoning ordinances, are included in the right of the government to regulate individual land use for the health, safety, and general welfare of the people. The county may also regulate the construction of private roads that lead onto public county roads in order to protect those public roads. In this chapter I discuss building codes, permits, and enforcement; health codes and permits; road encroachment permits; and how to protect yourself to be sure no code violations exist on the property you are buying in the Contract of Sale.
An Introduction to Building Codes
The first recorded building code was passed in New York (then called New Amsterdam) in 1625. The law specified types of roof coverings and locations of dwellings to prevent roof fires. In 1648, New York prohibited wooden or plastered chimneys, and inspections by firemasters were initiated. By 1656, straw and reed roofs were prohibited and ordered removed from all houses. Philadelphia went a step further in 1701 by passing a law providing that any person whose chimney caught on fire would be prosecuted and fined. From the very beginning building laws were enacted only after a disaster had occurred. Although fire prevention was the primary issue in the first building codes, today all aspects of construction are regulated.
Building laws are designed to protect people's financial investment as well as to ensure their personal safety. Often the appearance of a structure will be regulated, and unusually designed houses will be discouraged. (I talk more about this later in this chapter.)
Today most building regulations throughout the United States are based on the Uniform Building Code, which was established by the International Conference of Building Officials (ICBO) in 1927. The Uniform Building Code's stated purpose is to prevent people from being hurt physically or financially by providing minimum uniform standards of building construction.
The Uniform Building Code sets standards for: foundations, building materials, design, size and location of rooms, means of exits, windows and ventilation, fireproofing in construction, load and stress of materials for particular purposes, chimneys, stairways and guards, sanitary equipment, plumbing and electricity. Reprinted here are some requirements from the Uniform Building Code which are a good example of the kind of details covered by the codes.
1. With each application for a building permit, two sets of plans for construction shall be submitted.
2. Plans shall be drawn to scale upon substantial paper and shall be of sufficient clarity to indicate the nature and extent of the work proposed and show in detail that it will conform to the provisions of the uniform building codes.
3. Plans shall include a plot showing the location of the proposed building and of every existing building on the property.
4. Minimum room sizes:
a. At least one room of 120 sq. feet
b. Rooms used for both cooking and living or living and sleeping at least 150 sq. feet
c. Rooms used for sleeping two persons, 90 sq. feet. Each additional person, 50 sq. feet
d. Kitchen at least 50 sq. feet
5. Minimum horizontal dimension of any habitable room shall be 7 feet. Minimum ceiling height in habitable rooms, service rooms, and toilet rooms shall be 7 feet 6 inches. Where sloping ceilings occur, the required ceiling height shall be provided in at least 50% of the room and no portion of any room having a ceiling height of less than 5 feet shall be considered as contributing to the minimum required areas. Minimum ceiling height in hallways, corridors, and closets shall be 7 feet.
6. No water closet (toilet) space shall be less than 2 feet 6 inches wide and shall have a minimum of 2 feet of clear space in front of the water closet.
7. Required window area and opening:
a. Bathrooms and water closet compartments not less than 3 sq. feet nor 1/8 of the floor area, 1/2 openable.
b. Kitchens, rooms used for living, dining or sleeping purposes not less than 12 sq. feet nor 1/8 of the floor area, 1/2 openable.
8. Every dwelling shall be provided with a kitchen. No kitchen shall be used for sleeping purposes.
9. Every dwelling shall have the following minimum sanitary facilities: water closet, lavatory, tub or shower, and kitchen sink. All kitchen sinks shall be provided with hot and cold water. All of the above items shall be properly trapped, vented, and connected to an approved sewage disposal system.
10. There shall be no opening from a room in which a water closet is located into a room in which food is prepared or stored.
11. The specifications on this sheet are for conventionally framed dwellings and persons wanting unusual type construction should consult a professional designer.
Two thousand of the three thousand counties in the country follow the ICBO standards, although some areas make changes when necessitated by climatic or topographical conditions and local administrative procedures. The local Building Inspector's office will have copies available of the area's building requirements, including standards for building construction, electrical wiring, and plumbing.
Building Permits and Fees
Before you can build or renovate a structure, you must submit your plans to the local Building Inspector for approval and pay the applicable permit fees. If the building is a standard-construction "conventionally framed dwelling" of stud wall or masonry construction, you can submit your own plans. The inspector will examine the plans for compliance with the codes. If they are suitable, they will be approved. Then you pay a permit fee based on the number of square feet in the building. There is a standard fee list for each area that you can see before paying a fee. At the time plans are approved, one-half of the stated building fee must be paid.
Other permits must be obtained for plumbing and electrical facilities and additional fees paid. These fees are based on the number of outlets to be built into the dwelling.
Inspections and Certification of Occupation
Once your plans are approved and a permit is issued you can build the house yourself. The law does not require you to hire professional builders. During construction many building departments make four inspections. The first is to look at the foundation before it is laid. The second is a frame inspection after the roof framing and basing are in place and pipes, chimneys, and vents are complete. The third is the wall inspection before plastering or siding is commenced. The fourth, and final, inspection comes after the building is completed and ready for occupancy. Many rural areas only require a single inspection after the house is completed.
Before a home can be lived in and after the final inspection, the building department will often be required to issue a Certificate of Occupancy. If you are buying a newly constructed house, be sure it has been certified properly.
Getting an Unconventional Structure Approved
If you intend to build an unusually designed dwelling, you will be required to write to the International Conference of Building Officials (see Useful Resources at the end of this chapter) to see if they have any approved plans for such a structure. They have approved standard plans for common unconventional designs, such as domes and round houses. In most areas, to get approval of an unconventional design, you must have specific plans drawn up by a licensed engineer or contractor.
Testing for Structural Strength
The Uniform Building Code provides that if a structure does not meet normal code requirements, the local Building Inspector may conduct a test for structural strength on the building before it can be approved. In many cases, you will have to hire a structural engineer to conduct these tests to the satisfaction of the building department. Because of the growing popularity of domes, some companies have conducted strength tests on plywood domes. Most Building Inspectors have not had the experience of dealing with a dome and thus won't accept anything other than ICBO-approved plans. But you must check with your local department to see what their attitude is. If you can convince an inspector you know what you are doing, you will be able to get approval for a dome or other unconventional design.
If you want to buy land but don't have the money to put up a house right away, most counties allow you to live in temporary dwellings while building a permanent dwelling. In some areas, the Building Inspector does not have jurisdiction to regulate any "temporary dwellings" or canvas structures, such as tents or tepees. A tent usually means that 25 percent or more of the walls and roof are covered by canvas or other fabric.
If you have a bus, van, camper, or trailer, you can usually live in it on isolated land indefinitely except where zoning and building restrictions are strictly enforced.
Land That has Structures on It
If you want to purchase land with a structure already on it, you should be sure that it has been approved and that it meets current building and health code standards.
Two problems can arise when you buy an older house. The first occurs if the structure was built to code but is now substandard because the code has since been revised. Fortunately, new codes do not apply retroactively to buildings already approved in previous years. However, if it is determined that the structure is a fire or health hazard, or substandard under new code requirements, no permits will be issued for repairs, enlargements, or modernization of the building. The theory is that if you are unable to touch the house as it is, you will tear it down and rebuild according to contemporary standards. This situation is usually encountered in areas close to urban centers.
The more frequent problem in rural areas occurs if a house was built prior to the institution of building codes in that locality and thus was never built to any set standards. Whether you can live in it as is or must first have it brought up to code will depend on your local Building Inspector. I have encountered Inspectors who would take no pity in such a situation.
How to Find Out if a Building is Up to Code Standards
To discover whether a building meets the current standards, you should visit the county Building Inspector and see what he has on file with regard to the structure. You will have to give him the name of the current owner and the location of the land. Don't tell him what you think is wrong with the place until you see what he has on it. He should have a paid permit with all approvals having been granted. If you are talking to the official who inspected the house, ask him what his opinion of the structure is. Then tell him what you are going to pay for it and see what his reaction is. He might reinforce your opinion or open your eyes to some defects in the property you had not considered.
Appealing a Denial of a Building Permit
Every county that has building codes will have an established process for appealing decisions of Building Inspectors. The first level of appeal is often within the Building Codes Department itself, where a Board of Appeals will hear your request for a modification of a specific ordinance. You must present your situation and explain why it is impractical for you to comply with the code. For example, you might have to completely rebuild an older house to meet the codes, or you might be located far from any other buildings and thus your structure will not decrease the value of surrounding buildings. In most cases, it will be difficult to convince the board why it is not practical for you to comply with the ordinance, but it is always worth a try if you feel you are being harassed. You should use the same method for preparing your case as that used for a tax appeal. If the appeal fails, you will probably have to go to court, which involves the expenditure of time and money.
Some people choose to ignore the codes and permit requirements altogether. I have been in many places where enforcement is insignificant. However, every area of the country is gradually becoming more efficiently regulated on all levels. Even if you manage to avoid the Building Inspector now, when you decide to sell your property in five or ten years, your buyers might not be willing to pay a good price for a structure that was not approved. Meeting code requirements in rural areas is often so easy that it is really only a matter of paying the fees.
Building Code Violation Penalities
The Uniform Building Code establishes penalties for violation of the code in the following manner:
Any person, firm, or corporation violating any of the provisions of this Code shall be deemed guilty of a misdemeanor and each such person shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation of any of the provisions of this Code is committed, continued, or permitted, and upon the conviction of any such violation such person shall be punishable by a fine of not more than $300, or by imprisonment for not more than 90 days, or by both such fine and imprisonment.
Where work for which a permit is required by this Code is started or proceeded with prior to obtaining said permit, the fees required by said permit shall be doubled, but the payment of such double fee shall not relieve any persons from fully complying with the requirements of this Code in the execution of the work nor from any other penalties prescribed herein.
Most local laws permit an inspector to enter your property at any reasonable hour to enforce the provisions of the local ordinances. If you refuse him permission to enter, as some do, he may leave and return with a search warrant and an entire squadron of enforcers, including policemen, police dogs, sheriffs, and deputies. Sometimes the county agencies use small aircraft and helicopters which scan the countryside in search of new and illegal constructions. By checking the records they know if permits have been taken out on any new construction they spot from the air. If none have, they will pay the builder a visit.
Sometimes the Building Inspector will go to great lengths to enforce the regulations. In one place I visited, the Building Inspector used a helicopter to fly low over an area where many young people had recently immigrated, and dropped smoke bombs over the sites of illegal structures. A crew on the ground then followed the smoke to the buildings and issued citations. Obviously every county is not this efficient. But when large numbers of new residents move in, the authorities usually keep an eye on their activities.
The salary of the Building inspector is dependent on how much money he takes in for permits. If he manages to increase local revenue, he will not only have a better chance of keeping his job, but he also has a good argument for a salary increase. Much of the activity of Building Inspectors and other bureaucrats with a smattering of power is dependent on local politics.
Health Codes and Permits
Regardless of where you buy land, you will have to deal with the local health authorities. They are empowered to make sure that you have proper water and sewage facilities and to issue permits and collect fees. A small fee buys a permit for the construction of an outhouse and later installation of a septic tank. Contrary to popular belief, outhouses are not outlawed by many Health Departments. In many areas, if you do not have adequate running water under pressure to your house and the outhouse is not located within 200 feet of an adjacent residence, you are permitted to use a privy. The following are standard health requirements for outhouses:
1. It shall be unlawful to erect or maintain a privy or outhouse unless a suitable shelter be provided to afford privacy and protection from the elements. The door thereof shall be so constructed as to close automatically by means of a spring or other device.
2. The vault shall not be permitted to become filled with excreta nearer than two feet from the surface of the ground and such excreta shall be regularly and thoroughly disinfected.
3. The privy building shall be made flyproof.
4. The pit privy shall be at least 4 feet deep.
5. The pit privy shall be at least 75 feet from well or stream.
6. All privy buildings shall be kept in a clean and sanitary condition at all times.
Most areas today require that permanent septic tanks and leach lines be installed when a residence is constructed. This is often a costly venture requiring a machine operator to come in with a backhoe to dig your septic tank hole if you do not want to dig it yourself. The required minimum capacity of a septic tank is usually 750 gallons for a two-bedroom house. If you are purchasing land with a house already on it, be sure that the waste disposal system has been approved by the county and is functioning properly. You will save yourself a lot of trouble and expense if you discover inadequacies at an early stage in the proceedings. In most counties, cesspools and sewer wells are strictly prohibited, and even where they are allowed, they are an inferior method of waste disposal. Since these facilities are very common in many parts of the country, be sure the local regulations have not rendered such systems obsolete if they are in use on the land you are buying.
Health codes also regulate the construction of water facilities, particularly wells. Sanitary seals of concrete are required around the tops of wells to prevent seepage, and a coliform potability test is taken of all running water before it receives Health Department approval.
Road Encroachment Permits
Some counties are touchy about how private roads encroach, or lead onto, a county road since these adjoining roads, if not constructed and maintained properly, could cause damage to public roads. Problems include automobiles tracking mud from a dirt road onto a paved county road, washouts of dirt roads causing cave-ins and other problems for county roads, and dirt washing down onto paved roads.
Some counties regulate the construction of private roads and require permits and fees before road construction of a dirt road that will encroach onto a public road can be commenced. The private owner is required to bring his road up to the standards of the public road at the point where the two roads meet. To do this the costs vary, but often run up to $150-$200, which includes grading materials, culvert pipe, and labor. If you are required to construct a road to get onto your land you should figure this cost into the purchase price and adjust the figures accordingly. If there is a good road into the property you will pay for this "extra."
Check on all road and encroachment requirements by talking to the local Department of Public Works. Often they will have a special office for roads called the Road Division. Find out if the seller has obtained the proper permits for his road and if it meets current county standards.
Warrenty that No Code Violations Exist
Your contract of sale should contain a clause which is a warranty by the seller that no codes are being violated by his use of the property or by the construction of any improvement on it. This warranty means that no building, health, road encroachment, zoning, or other codes are being violated and that all permits have been issued and fully paid for. The fact that the seller signs this warranty as part of the contract should not relieve you of going to the local departments to determine if the seller has met the required statutes and codes.
Condition Your Land Purchase on Your Ability to Obtain Necessary Permits
If you intend to build a house on the land you are buying, you should speak to all the various inspectors about the local codes and have them look at the land to determine if there will be any problems with the building site that could prevent the issuance of the necessary permits. You should know before you buy that you can put a road in, build a house, and have adequate site conditions for sewage disposal. If there is any doubt about your ability to obtain a permit, you should specify the type of permit being sought as a condition of the execution of your contract. If you cannot get approval by the close of escrow, you can terminate the purchase and have your money returned or postpone the close of escrow. You must make a reasonable attempt to obtain the permit by submitting appropriate forms.
How One Homeowner Got Rid of the Building Inspector
Many people in the country deal with the myriad bureaucratic hassles, permits, and fees by ignoring them and hoping they don't get caught. A good friend of mine named Paul chose the exact opposite tactic in dealing with his local Building Inspector, who was one of the toughest I have met. When Paul bought his place, the largest structure on the land was a big beautiful red barn which he wanted to convert into his family dwelling. Because a barn in the eyes of the law is not meant to be a house, many problems were involved in meeting the requirements of the building codes.
Knowing in advance that he would meet the Building Inspector sooner or later, Paul went to his office and told him what he was going to do. He drew up some fairly sketchy but basic plans, submitted them for approval, and paid the first part of his fees. Then he began to modify the barn and make it his home. The inspector came to make an inspection and then began appearing on a regular basis. Each time he hassled Paul about some aspect of his remodeling job until he really got on Paul's nerves. So Paul decided to give him some of his own medicine.
Any time he began a new part of his remodeling, like a new wall, floor, beam, ceiling, or fireplace, he called up the Building Inspector and asked him what kind of materials he should use, how much he should buy, what kinds of nails or cement he should get, and how he should do the job. After several weeks of constant phone calls, the inspector had had enough. In complete exasperation he told Paul, "Dammit, I'm not your architect or contractor. Stop calling and bothering me." Paul then sent in the rest of his fees and never saw the Building Inspector again.
As long as you know that your house is going to have to be built to code and be inspected by someone who's being paid with your fees, you might as well get your money's worth. Bug the inspector. Maybe he'll leave you alone. If you're way off in the hills, all he really cares about is getting those fees. As long as nobody is going to see your house and complain about it and his job will not be jeopardized, he will probably leave you alone. The most important element of his job is collecting the fees and that is his primary concern.
All local codes and sample plans can be obtained at your local inspector's office. Check with the Building Inspector, Department of Roads, and Health Inspector.
The three national organizations that make up the various codes will send you any information you want on any aspect of the requirements for house construction.
Uniform Building Code: International Conference of Building Officials (ICBO) (Editor's Note: In 1994 the ICBO joined with other building code organizations to produce the International Code Council (ICC).)
Uniform Plumbing Code: The International Association of Plumbing & Mechanical Officials (IAPMO)
The Electric Code: The National Fire Protection Association
Although local Building Inspectors usually distribute the required building regulations and sample construction plans, you can obtain a complete set of the Uniform Building Codes in an abridged version of the latest edition of The Uniform Building Code. (Editor's Note: After 1997 the ICC began publishing the International Building Code to replace the Uniform Building Code.)