Building Codes

Comments from Victor G. Faggella, P.E., ASHI Member

I read, with some confusion, the VIEWPOINT article in the March 2002 ASHI Reporter, entitled, “No need for controversy: code relevancy to National Home Inspectors Exam and 2000 ASHI Standards of Practice explained.” The author, JD Grewell, rather than eliminating controversy, appears to be trying to confuse the issue. As a professional home inspector, with 33 years experience, I would like to respond with an alternative opinion.  

The author states his article was written in response to those contesting what his committee believes should be included in an inspection report, based on the 2000 Standards of Practice. He counters a contention from the opposition that “a staircase in an existing grand old mansion may not comply with today’s needs, but need not be considered significantly deficient,” with the following statement: “unsafe stairs, be it (due to) broken or missing balustrades, or uneven risers, create a safety hazard that must be disclosed.”

His response is misleading and does not address the issue. Dangerous conditions, such as broken or missing balustrades, or uneven risers, apply not only to old stairs but newer stairs as well. His statement in no way addresses the question as to whether the stairs are dangerous for other reasons or are just “not up to code.” Just because the stairs are old and do not conform to present codes does not automatically make them unsafe. The article further states, “We use minimum construction standards as our guide. These are called codes.” He goes astray here, as well. While these minimum construction standards may be the basis for some codes, they are not considered as such until they are formally adopted by an officially recognized code bureau or agency. When codified, the Code Enforcement Officer has the sole responsibility for their application, not the home inspector. For many years home inspectors have been pointing out deficiencies and safety issues before they ever became codes and can continue to do so without code references.

It appears, therefore, that many home inspectors do not wish to have to reference codes and become, in effect, “Code Enforcement Officers.”. They believe the Code Enforcement Officer serves a different function from the home inspector. He examines a building during construction or renovation. His job is to see that the building and its components conform to all the existing and applicable codes, to ensure the health and safety of the occupant, which is the prime function of codes. The home inspector, on the other hand, typically inspects pre-existing homes and while determining health and safety issues is part of a home inspector’s job, it is not all of it. There are many other issues to be addressed in a home inspection, as stated in the Standards of Practice.

In my 33 years as a professional home inspector, I have seen many changes in the “codes.” However, because something does not conform to a present code does not necessarily make it unsafe, and because it does conform does not necessarily ensure safety. To use the example of the stairs, although older stairs may be narrower than present codes allow, they are not inherently unsafe, unless some other problem exists. Further, because something conforms to present codes, it does not automatically mean some safety issue will not exist. Elevated fireplace hearths are allowed, yet I believe they pose a hazard to young children, and our report so states.

Although it may be helpful to know the codes, I do not think it is necessary to specifically reference them to do an excellent home inspection. Thorough explanation of the deficiency should be more than sufficient to make your client aware of the problem without reference to a specific code.

He gives the following examples to reinforce his concept that code references are necessary in citing problems but in effect reinforces mine, that they are not: “because it does not comply with good building practices (based on code); has safety concerns (based on code); was installed in such a manner as to void a manufacturer’s warranty (based on code by reference); has significant rot/insect damage (no code reference. Why? Is there nothing in the code referring to such damage?) and was altered in such a manner as to impinge upon the structural integrity (code by reference) to such an extent that the condition needs to be reviewed by a licensed structural engineer, etc.”.
All of the above statements, with some elaboration of the problem, could well stand alone, without any reference to code. They specifically state why the inspector considered the inspected items significantly deficient, and adding a code reference does not alter the statement, nor in my opinion, strengthen it.

As a side note, unless the inspector is a licensed Professional Engineer, he should not make comments regarding “structural integrity” (as stated in the example) as this is an engineering determination and not within the scope of a visual home inspection. There should be a simple description of the deficiency. “The condition needs to be reviewed by a licensed Professional Engineer, specializing in structure.” The home inspector thus adequately describes and addresses the problem and makes the necessary recommendation without any code reference made or needed.

Comments from John Bouldin

John Bouldin, ASHI Candidate, sent these comments to ASHI President Mike Casey.

Mr. Grewell presents an interesting article in the March 2002 ASHI Reporter on the relevancy of building codes to the ASHI Standards of Practice and the National Home Inspectors Examination (NHIE).  The exam is a product of an independent testing organization, and as such, they may do with it what they will. This inspector writes to this subject as an ASHI Candidate.

Most of us agree that the future of home inspecting will require more and more specific knowledge, and that the technical requirements to perform home inspections will increase. At this point in time, we must consider the implications of introducing Code items into our practice.
Here is a brief list of some major dangers home inspectors may encounter when attempting to wield Code information:

1) ASHI’s own sample inspection agreement

This inspector received the ASHI Candidate information package in November of 2001. Among the information pages included is a document addressing sample inspection agreements. On page 10 of 36, paragraph 8 under the heading “The following Specific Limitations Apply,” I quote the sample language: The inspector is not responsible for reporting compliance or non-compliance with any building, electrical, mechanical or plumbing codes established by municipal ordinances or otherwise on the building, systems, or items therein.

2) The ASHI Standards of Practice

General Limitations and Exclusions Paragraph 13.2 B 8. It reads Inspectors are NOT required to determine: compliance with regulatory requirements (codes, regulations, laws, ordinances, etc.)

3) E&O insurance

My current error and omissions insurance policy states in the exclusion section: Exclusions: any claim arising out of the inspections performed for the purpose of ascertaining compliance with any laws, codes or regulations; or any insureds failure to inspect for, discover or disclose any noncompliance with such laws, codes or regulations.

4) What code to use?

Codes differ from jurisdiction to jurisdiction, and are not uniform across the country. Virginia, for example, has not yet adopted the International Residential Code that forms the basis for the NHIE code questions. If an inspector attempts to point out IRC code deficiencies, he may well be giving out false information to the inspection clients due to the fact that the IRC is not used here.

5) Code changes

If an inspector is expected to master the intricacies of codes, he will be obliged to learn code requirements in every jurisdiction he works in. Many jurisdictions modify their code requirement regularly. Some vehicle would have to exist to enable inspectors to keep up with all these changes.

6) Risk versus fees charged

If home inspectors are to offer this enhanced service, the inspection fee would have to dramatically increase.

7) Confusion of the public and inspectors

Home inspector agreement forms typically specifically exclude any liability for code-related issues. How far beyond that exclusion do we want to go?

8) Recent fiasco with the NHIE sample test  

Since the NHIE exam is the gateway to ASHI membership, it is important for ASHI Candidates and Members to know, a number of inspectors have pointed out deficiencies in the NHIE sample exam. The larger question is this: What if the process of question and exam development was flawed rather than just the sample exam?

In summary, it is very reasonable to expect that the home inspection industry will have to master more and more information. It is also quite likely that the fees charged for these services will have to increase. The immediate question is: Where are we right now? The obvious differences between what most inspectors think they are doing versus what the confusing code issues imply that inspectors should be doing is immense.

Editor’s Note: If home inspectors are professional critics who provide a service based on judgment, technical discussions are to be expected. (See Letters to the Editor, page 5.) There are usually credible reasons for differences of opinion and such discussions can be a learning experience for those who participate. Nevertheless, the sample exam could be a helpful tool for those preparing to take the NHIE. More importantly, the NHIE is the only home inspector competence assessment tool that is developed and maintained according to joint standards established by the American Psychological Association, the National Council on Measurement and Education, and the American Education Research Association. The processes used to prepare and score the Examination are in accordance with applicable psychometric concepts to assure validity, reliability and legal defensibility. (See EBPHI News, page 26.) For complete information about the National Home Inspector Examination, go to www.homeinspectionexam.org.