How Code Enforcement Balances Current Codes and Their Predecessors

As states and local jurisdictions adopt the 2024 International Codes® (I-Codes®), we code enforcement officers still find ourselves engaging more often with their predecessors. We investigate complaints about structures built ten, 20, 30, 50 or 100 years ago, and our job is to know what was legal at that time. We are the antiquarians of the building industry.  

This is a unique and exciting job. After almost thirty years of doing it, I still find that every time I engage with an older code, I embark on a historical adventure. As the International Code Council (ICC) now offers certification credentials to code enforcement professionals, I think it is important to have a clear understanding of our relationship with the I-Codes — both past and present.   

Here, I share my understanding of this relationship and offer some suggestions which I hope fellow code enforcement officers find useful. 

The Current I-Codes and Use by Code Enforcement

There are four areas in which we engage with the latest I-Codes:  

1. We cite them when we stop unpermitted work. 
2. In rare cases, we apply some of their requirements retroactively. 
3. We study them to advance our own understanding of the general concepts of building safety. 
4. We learn from them the current requirements to strengthen our position in the enforcement of old ones.  

Stopping Unpermitted Work 

In some jurisdictions, stop work orders are issued by building inspectors; for others, it is the responsibility of code enforcement. This means that Sections 105 and 115 of the International Building Code® (IBC) are our specialties. Both are relatively short and non-technical sections, yet they are not easy to apply. Consider Section 105 with its broad language and many exceptions, which varies from one jurisdiction to another. How do we navigate it? Issuing a stop-work order usually happens when a project is started without a permit. But some projects are small, and issuing a stop–work order is disruptive. How do we apply Section 105 without causing unnecessary harm?   

Of course, in most cases the building official will be our guide: he or she will determine what work requires permits and what doesn’t. Some may require a permit for non-structural work, such as kitchen cabinets or a permit to replace a toilet, but others may not. Code enforcement officers must know the building official’s interpretation. But what if there is no clear policy? What if the officer has to decide in the field—under the watchful eye of the complainant or the pleading eye of the contractor—whether to stop the work? 

In such cases, I have found it helpful to ask myself: Can bad craftsmanship in this project cause an unsafe condition? If the answer is yes, the work should be stopped until a permit is issued. If the answer is no, a permit is not needed, then the work may proceed. Remember, a permit is simply an application for inspection; its purpose is to have a building inspector look at the work.  Ask yourself, does the work in front of me need to be inspected? If it is not inspected, can it result in a hazard? If the answer is yes, stop the work until a permit is issued and keep the case open until it is signed off. If on the other hand the work will not result in a hazard even if performed poorly, I do not believe a stop work order is needed. 

Consider a handyman replacing a 3’x3’ water-damaged portion of a wall. Does this work require a permit? Most likely not, because no unsafe condition would be created even if the handyman used fewer nails than required. But if the same portion is nailed to the ceiling, an unsafe condition can be potentially created if fewer nails are used. Therefore, the work needs to be stopped and a permit obtained so that a building inspector can assess it. The same applies to any portion, no matter how small, that needs to be fire-rated. In such cases where the work poorly performed might create unsafe conditions, a permit is to be obtained and the work inspected. 

Retroactive Requirements 

The second area of our engagement with the current Code is the enforcement of the sections that apply retroactively. There are only a few. As a general rule, the IBC, and building codes based on the IBC, applies to properties being developed now or in the following few years. But in rare cases, the current Code applies to all properties, no matter when built.   

For example, in 2013, the California Building Code was amended to require that carbon monoxide alarms be installed in all existing dwelling units with fossil fuel-burning appliances or attached garages. This meant that no matter when a building was built, it needed to have carbon monoxide alarms.   

Another example is smoke alarms: in 2016, the California Health and Safety Code required that all existing dwelling units have additional alarms in the locations required by the then-current Building Code. This meant that a typical one-bedroom apartment that would previously need to have only one smoke alarm centrally located, now needed two, one in the hallway and another in the bedroom. In both cases, it is code enforcement’s responsibility to apply the modern Code retroactively. 

General Concepts of Building Safety 

The third area is self-education. The language of the Code can be forbidding, and unless we come to code enforcement with a background in construction, we need all the help we can get to understand what it means. This is where the commentaries are indispensable. They teach us that the basic ideas lying behind the Building Code are only a few. A structure must resist five major forces always present in mother nature: gravity, wind, fire, water and earthquake. It must be sturdy enough so that it does not fall, and nothing falls on people’s heads (force of gravity). It must withstand lateral forces of blowing wind. It must not ignite easily or, if ignited, provide people with enough time to get out. It must protect people from the rain. It must be strong enough to withstand the shaking of the ground. Finally, it must have features conducive to the needs of the human body: access to fresh air, heat, clean water, restrooms and light. Having grasped these basic ideas, it is easier to understand what each section of the code aims to achieve. The commentaries help us do this; they explain things in simple language and often with great illustrations.  

Contextualizing Modern Standards 

Finally, we learn from the current code about modern standards for building safety. This is needed because even though we work with existing structures, it is important to establish what constitutes a violation today. When encountering something questionable in the field, the first thing to check is whether it is illegal today. If it is legal, we will have a difficult time enforcing it even if we show it was illegal in the past. There was a time, for example, when a second-floor residential unit required two exits. The current Code does not. In today’s world we worry about getting people down safely from the 30th floor, not the second. So, if we got a complaint about a missing secondary exit from such a unit, we would have a hard time enforcing the now obsolete rule. This is why it is important to determine if the condition is legal today. If it is not, we have good reason to believe it was not in the past either. Now is the time to do some research. 

The Code Enforcement Officer Investigates Historical Records

Our engagement with older building codes, as I mentioned earlier, is a critical part of the job. Our ability to do historic research is a necessary skill. As we encounter older buildings with code violations, their owners often tell us that this is how they were built. They invoke the concept of legal non-conforming. We must be prepared for this challenge. Sooner or later the owner, their attorney or the judge will ask us, ‘Would this condition have been legal at any time in the past?’  If we cannot answer this question, we have no case. The burden of proof is on us, and we must be able to show that the condition we are citing is not only illegal today, but it would have been illegal at any time in the past. 

This seems like a tall order, but it is doable. To make the case stand, the officer should be able to answer the following six questions:  

1.  Is the condition legal today? 
2. When was the building built? 
3. What jurisdiction was it built in? 
4. Was there a law regulating construction in the jurisdiction at that time?   
5. If so, did the law prohibit the condition?  What section(s) prohibited it?   
6. Have there been any periods during which the law might not have applied? Was it at any time repealed, if only temporarily? 

Only when these questions are answered and relevant facts established is the officer ready to enforce the violation.   

Real-World Example 

In a small Southern California city, a code enforcement officer responds to a complaint from a two-story apartment building. As the officer walks up the stairway, he notices that some of the steps feel uneven. He takes a closer look and measures the steps. The stairway itself is sturdy and looks relatively new. It may have been built within the past 15 to 20 years, but the risers are all off: most are 7”, but others are 8 ½”, 6 ½”, and even 11”. This is a serious safety issue. Back in the office, the officer researches the building and finds that it was built in 1928. Unfortunately, the property file has neither building plans nor permits. If the officer’s hunch is correct and the stairway is 15 to 20 years old, it would not have passed an inspection anyway, because no inspector would have approved it. But there is no evidence as to when the stairway was built, and proving a hunch in a court of law is hard. How should the officer proceed? 

Considering the seriousness of the violation, he decides to issue a Notice of Violations citing Section 1011.5.4 of the current IBC prohibiting rises from being more than ⅜-inch different. A few days later, he gets a phone call from the owner saying he has owned this building since 1979, and this is how the stairway has always been. He did not replace it, he says; he did not change anything; it must have been original to the building. The owner says the stairway must be grandfathered in. What is the officer to do?  

He decides to find out if the risers could have been permitted at any time in the past. If they were, the owner is right, and the stairway is legal non-conforming. But where to begin? He already knows the answer to the first two questions: (1) the risers are illegal today, and (2) the building was built in 1928. Now is the time to ask, ‘What jurisdiction was the building built in?’ The officer knows it is in a city now, but the city was incorporated only in the 1980s. Before that, it was the county. So, the next question to be researched is, ‘Was there a county building code in effect then?’ The officer starts asking questions and looking around the Building Division counter, but nobody knows the answer. The building inspectors and plan-checkers do not have this information; they work only with the current Code. The building officials might have some older codes on their shelf but not as far back as the 1920s. 

After exhausting all the resources at City Hall and the County’s Building Department, the officer finds himself in the Los Angeles County Law Library. Looking through old paper files and microfiche, he learns that the county did not appear to have its own building laws until the mid-1950s. But what about before that? Was there any building code in the county in the 1920s? Or was the county like the Wild West and anybody could build anything they wanted?   

The officer finds some building regulations scattered through various documents, but nothing like a uniform code dedicated to construction—and nothing about stairways. As the officer keeps looking around the library, he notices a long row of thick volumes titled Statutes of California. The books have all legislative actions taken by the State Legislature dating as far back as the 19th century. The officer has an idea: the county might not have had building laws in 1928, but the state could have. If it did, these laws would apply throughout California, even in unincorporated counties. The question now is, ‘Were there state laws regulating construction in California before 1928 and did they have anything to say about stairways?’   

Going through the volumes, the officer discovers that as early as 1909, California passed its first state-wide building code. It was called the Tenement House Act, and by today’s standard it was tiny—only 14 pages. The law did apply to all apartment (tenement) buildings constructed thereafter and throughout the state. Its scope included “all incorporated towns, incorporated cities, cities and counties.” Therefore, the answer to the first question was yes: the law did apply even to the land on which the building was built in 1928. But did it have anything about stairways?  

It did. “All stairs shall be constructed with a rise of not more than eight inches, and with treads not less than nine inches wide” (Statutes of California, Thirty-Eighth Sessions, p. 951). This was a great find, the officer thought, but it was still not enough to support his case. The law did not say anything about the difference between risers. In addition, the 1909 law was in effect almost twenty years before the building was built. What if it was later repealed? 

The officer keeps looking, moving towards 1928, and finds that the Tenement House Act was indeed repealed a few years later. But another law was enacted in its place, and the new law—the 1923 California State Housing Act—gives him what he is looking for. “Every stairway hereafter constructed,” the law reads, “in an apartment house or hotel, shall be as follows: have a rise of not more than eight inches and a run of not less than nine inches, without change in the run or rise between floors” (Statutes of California, Forty-Fifth Session, p. 812). This is exactly the language he needs to prove his case. And much to his surprise, the 1923 law was stricter than the modern Code—it did not allow any difference between runs and risers at all. 

Now the officer knows that even if the stairway was constructed in 1928, its uneven steps would not have been legal. Still, one more question remains: Could it be that between 1928 and now a difference in rises was permitted? The officer takes time to examine all the following building codes to the present day. He finds no language that would allow the difference to be more than what it is today: ⅜ of an inch. The stairway has always been illegal.  

Now all the questions have been answered. The stairway does not have legal non-conforming rights. Armed with strong evidence, the officer can now pursue his case. He starts issuing the owner citations and, when the owner does not comply, incorporates the research into a prosecution report for the city attorney. Faced with the potential of a lawsuit from the city, the owner finally agrees to obtain a permit and rebuild the stairway in compliance with the current Code. The case closes.   

Key Takeaways 

With some rare exceptions, the current International Building Code® does not apply to existing structures. But code enforcement works with existing structures every day, and owners have the right to maintain them as legal non-conforming. To be successful in his job and not to violate owners’ rights, the officer must judge such properties by the laws under which they were built.   

While code enforcement’s relationship with the current I-Codes can be limited, we often dive into library catalogues and historic collections, looking for old building regulations, flipping through their brittle pages and pouring over their faded charts.   

We are the antiquarians of the Building Code.