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Egress Windows - Pre-Existing Non-Conforming?
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Egress Windows - Pre-Existing Non-Conforming? By  Eugene Ninnie

Posts: 4

1/7/2012 3:46:40 PM

What year did the egress window and current size come into effect under the ICC?

A client of ours purchased a home in 2007. It was built in 1994. The home was marketed as a 5 bedroom home in 2007 when our client purchased it.  Moreover the professional licensed appraiser appraised it as a 5 bedroom home. However 2 of the bedrooms are in the basement with standard non-egress windows finished and constructed when the house was built in 1994. A professional engineer also had a report  in 2007 that did not mention about the lack of egress windows.

Today it is being sold and marketed similar when it was in 2007, a 5 bedroom home. Now there is a an argument between the buyer and seller (our client). The current buyer insists that in order for it to be marketed as a 5 bedroom home then 2 bedrooms in the basement must be egress. The seller indicated that it is preexisting nonconforming meaning it was constructed before the egress  requirement.

My question is who is right? If the buyer is correct and the home was originally marketed as 5 bedrooms and the egress window requirement was in effect, can the current seller go back to the appraiser and PE legally? Because if it cannot be sold as a 5 bedroom home and now it is only technically a 3 bedroom that will certainly devalue the home and the current seller will not command the same price if he could market it as a 5 bedroom as was told to him in 2007

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Egress Windows - Pre-Existing Non-Conforming? By  Brian Little

Posts: 18

1/8/2012 1:50:26 PM

 Posted by Eugene Ninnie

What year did the egress window and current size come into effect under the ICC?

Dollars to donuts the code in effect at the time the residence was built contained a requirement for EERO's.  The Uniform Building Code (UBC) contained a provision as early as 1970.  Your client is likely wrong in their assertion that there was no code provision in 1994.

The first ICC codes did not appear until 2000.  Prior to 2000 the local jurisdiction likely adopted model codes promulagated by ICBO, BOCA or SBBCI.

In order to answer your question you need to know what code was in effect in the jurisdiction at the time the residence was constructed.  A call to the building department should be able to answer that.  The codes routinely change on a three year cycle.  West Coast code (excluding California) was likely the 1988 or 1991 UBC.  

The requirements under the UBC were for 5.7 SF minimum area.  Max sill height 44 inches .  24 tall x 20 wide minimum.

I would not expect a PE to understand egress requirements.  I am surprised an appraiser would not take exception to the basement rooms being called bedrooms.  It sounds like the basement bedrooms came in after the original construction and likely were constructed without a permit.  

Good luck

 

 

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   Edited By Brian Little at 1/8/2012 1:51:51 PM.

Egress Windows - Pre-Existing Non-Conforming? By  Loren Ryan

Posts: 30

1/13/2012 12:15:17 PM

I am assuming the problem is clear opening size and not sill height by what you have written. My question for you is how much too small are the windows and what is the dimension from sill height to the finished ground level? The reason for my question is that the IRC (2000-2012) has always had an exception for grade floor openings that allows them to be 5 square foot instead of 5.7. Many people automatically assume that grade floor is first floor windows but I don't see that as the case.

A grade floor opening is a window or other opening located such that the sill height of the opening is not more than 44 inches above or below the finished ground level adjacent to the opening.

Thus if the windows are over 5.0 square foot (instead of the 5.7 that the buyer might be referencing) and the sill height is 44 inches or less below the finished ground then those are code compliant windows by ICC building codes. It might very well be the basis that the PE and appraiser used to call it a five bedroom previously...In my opinion it would be legitimate.

The piece of the puzzle missing is what code governed the jurisdiction in which the residence was built or modified. You could find out and see if the language existed at that time to know if it was constructed properly. Even if not, it appears the buyer is concerned more about "current code" to which the exception is relevant.

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   Edited By Loren Ryan at 1/13/2012 12:18:09 PM.

Egress Windows - Pre-Existing Non-Conforming? By  Eugene Ninnie

Posts: 4

1/14/2012 8:50:06 PM

One more thing. The house is located in a western state and in a county where there is NO BUILDING INSPECTOR. While the house proeprly constructed and a fine home this is the only hang up. The windows are about 30” wide x 18” high sliders at the top of the wall. Moreover there is a wrap around deck around the entire house so even if there were egress windows there would need to be penetrations into the deck to provide egress. But what I am interested in is the LEGAL ramifications of such a SNAFU. If there are any attorneys out there please jump in

 

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Egress Windows - Pre-Existing Non-Conforming? By  Brian Little

Posts: 18

1/15/2012 2:14:33 AM

 Posted by Eugene Ninnie

One more thing. The house is located in a western state and in a county where there is NO BUILDING INSPECTOR. While the house proeprly constructed and a fine home this is the only hang up. The windows are about 30” wide x 18” high sliders at the top of the wall. Moreover there is a wrap around deck around the entire house so even if there were egress windows there would need to be penetrations into the deck to provide egress. But what I am interested in is the LEGAL ramifications of such a SNAFU. If there are any attorneys out there please jump in

 

Not a lawyer.  For legal advice your client should retain an attorney.  

The attorney will spend a bunch of time to discover facts such as what code, if any, applied at the time of construction.  Whether or not a permit was required and issued for the original construction, and if a permit was issued was it issued for a 3 or 5 bedroom residence?  Once those facts are discovered then one could establish if the original Owner finished the basement without a permit and failed to disclose the work to your client.  Once that is established then your client could possibly try and recover from the 2007 seller assuming they were the original Owners.

Irrespective of the above the basic fact remains that the residence is a 3 bedroom and not a 5 bedroom and your clients assertion that the 2 basement bedrroms are grandfathered is incorrect.   

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Egress Windows - Pre-Existing Non-Conforming? By  Oregon Trail CBO

Posts: 21

1/16/2012 2:16:35 PM

A very unfortunate situation indeed. I agree with the others;  find out the code in effect when the home was built. It also sounds to me like this was an illegal alteration. There are other code requirements to be met as well outside of the windows to provide adequate egress. The mention of a deck over the top of the windows is a challenge as well. All of the issues are solvable, but will cost the seller some cash. 

You also mentioned "no building inspector". Is there no local building department? In our state, Oregon, the codes are adopted by state legislature and therefore have statute authority statewide. The absence of a local inspector would not relieve the builder from the minimum code requirements.

Best to you on this one, I would not purchase this home with the intention of using the basement area as bedrooms. The buyer is in the driver's seat. Bottom line is "Buyer Beware" in this case. 

And I am always asked "Why do we need building codes?" Obviously in this case, it goes beyond the safety aspect and protects the owner's financial investment as well.

"Remember: The minimum code equals the worst possible construction the law will allow."

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Egress Windows - Pre-Existing Non-Conforming? By  gene anderson

Posts: 4

6/17/2012 6:56:15 PM

I own a property which has what is known as a daylight basement.  Full height ceilings like the floor above and built in 1938 with 2 bathrooms and 3 bedrooms in the daylight basement.

The window sill height is 48" in sleeping rooms.  Always has been 48".  Too bad when they built they did not take into consideration that sometime in 1948 someone would establish a building department and make new codes.

Some years ago I spoke with the Fire Cheif and he said just put a 4" step in front of the window.  City told him where to place his thoughts.  I then suggested a ladder (floor to window sil)l and that did not fly with the city.

It seems reasonable that this issue be grandfatherred just like all other codes.

Interested in hearing other opinions.

 

thanks

 

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Egress Windows - Pre-Existing Non-Conforming? By  Mac

Posts: 91

6/18/2012 8:07:16 AM

The Property Maintenance Code applies in existing homes. Here is the text regarding similar circumstances:

702.4 Emergency escape openings. Required emergency escape openings shall be maintained in accordance with the code in effect at the time of construction, and the following. Required emergency escape and rescue openings shall be operational from the inside of the room without the use of keys or tools.

I don't believe there is a requirement for the windows too comply with the egress and rescue codes for new construction.

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Egress Windows - Pre-Existing Non-Conforming? By  Dennis Keierleber

Posts: 366

6/18/2012 8:28:20 PM

Interesting thread. Kudos to Oregon Trail for pointing out that a big part of code enforcement is protecting a building owner's investment. It's a frequently over-looked aspect.

I sympathize with Gene but the original post was for a home constructed in 1994 and, as pointed out by many, we don't know that the finish work in the basement to create the sleeping rooms was a legal remodel. The original intent may have been for a finished basement but we don't know the intended use in the original plan. So I can't agree with Mac that the Property Maintenance Code should govern. In fact, I wouldn't consider this an existing condition. My opinion is that the original intent of the code provisions for existing buildings was that they were built prior to the adoption of any building codes. This has gotten muddied somewhat especially given the stated intent of the Existing Building Code. All that is generally for stuff built to the IBC (or UBC). Now that all areas have both a residential and commercial code, things are even muddier. However, in my opinion, something not built to the code in effect during original construction, especially where the violation involves a life-safety condition, is never grandfathered in.

Having spent some years reading the Building Permits Law Bulletin, I'd say avoid any court action. Cases are usually settled on minor points of law but if you are in a fairly rural area (you said there was no local building official) you are likely to get a court that has the mindset of a cracker barrel philosopher. Even if you find legal help that can read and understand the code, it's likely the judge will not have any inclination to do so. Building codes are part of the law of the land but sometimes aren't taken seriously unless there is an injury in a commercial space. I suggest settlement or mediation.

DK Engineering PLLC
dkengineer.com

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