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House Not Up To Code

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 654

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader purchased a home five years ago and recently found out it does not meet code regarding setback rules. Ilyce and Sam explain that the home may be grandfathered in if it met code when it was built.

Q: We bought our home five years ago. We recently found out that certain things about the home do not meet code.
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For example, the house is apparently placed too close to the street and violates the setback rules. This fact was not disclosed to us when we bought the home.

Are we now responsible for moving the home away from the street? What recourse do we have after such a long period of time?

A: There are zoning and building codes just about everywhere in the country. Zoning codes regulate what can be built and where and building codes regulate how things should be built. Sometimes, zoning and building codes are changed or updated after a home has been built.

For the most part, if a home complied with the zoning and building requirements in place at the time it was constructed, that home would be grandfathered in under the newly established zoning and building codes. In other words, if your home was okay when it was built and you now find that the zoning code would have required a greater setback from the street for the home, you will not be required to move the house.

In some instances, you might be required to upgrade your home to meet current building codes. For example, homes that are used for business purposes or have other uses need to be upgraded to protect the general public that might use the home. In some instances, building codes may require that you retrofit an existing house with smoke and carbon monoxide detectors even though local code did not require them when the house was built.

Your case seems to be about a zoning issue, and to find out more, you’ll need to stop by your city or village hall.

You can determine when the house was built, and you may even be able to find out what the requirements were at the time of construction. You’ll probably discover that the house was built to conform to the building codes of the day.

If you find out that the property met the available building codes when it was constructed, you won’t have to worry. One great piece of information you can find at your city or village hall is a copy of the building permit for the home and the certificate of occupancy. If you find, at least, the certificate of occupancy, you should be fine.

On the other hand, if you find out that the home was put up without permits or was put up in the wrong place and no certificate of occupancy was issued, you may have a problem and should consult with a real estate attorney in your area.

You may be required to make modifications to the home and, in the extreme case, you would have to move or remove the home or pay penalties for the home’s failure to abide by the municipal requirements in your city or village. You may be allowed to keep the structure where it stands by obtaining a variance from the zoning board in your municipality.

If you find yourself in deep water because of these issues, you will have to discuss these issues further with a real estate attorney. Any claim against your seller might have expired due to the length of time since your purchase. An attorney can help you explore your legal options, such as going after the seller under your state’s seller disclosure laws.

A state-mandated seller disclosure law, if in place at the time of your sale, would have required the seller to give you notice of any material deficiency known to the seller. If the seller had constructed the home without the permits, he might have been required to disclose this to you.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com