The Pitfalls of Enforcing Codes in Litigation Scott Williams, Chief Building Official for City of Baytown Allison Poole, Olson & Olson, LLP

Issues you may encounter in litigation What they don’t know can hurt you You’re an expert in enforcing the codes, but judges, property owners and lawyers probably aren’t. Deposition trouble What a judge cares about

Litigation issues with Certificates of Occupancy and Inspections Code confusion Multiple types of certificates of occupancy The inspection process and all its moving parts Focus here: what matters when a property owner sues the building official or the city for failure to pass inspections.

Certificates of Occupancy Certificate of Occupancy per the Building Code “No building or structure shall be used or occupied, and no change in the existing occupancy classification of a building or structure or portion thereof shall be made, until the building official has issued a certificate of occupancy therefor…” “After the building official inspects the building or structure and finds no violations… the building official shall issue a certificate of occupancy…” Int’l Building Code § § 111.1-111.2 (2009).

Certificates of Occupancy Complex-wide Certificate of Occupancy “No multi-family dwelling complex shall be used or occupied… until the landlord has obtained a certificate of occupancy… The complex, including all occupied and all vacant dwelling units, shall be subject to a complete certificate of occupancy inspection by the building official before a new certificate of occupancy will be issued.”

Certificates of Occupancy “If the building official determines that the complex fails the certificate of occupancy inspection, all units within the complex that are vacant at the time of inspection or thereafter becoming vacant, shall be posted for non-occupancy, and the landlord shall not allow the occupancy of such units until the complex passes final inspection and is issued a certificate of occupancy.” Litigation issue: if owner is renovating and receiving certificates of occupancy for closing out permits, code language can cause confusion. Still need a complex-wide certificate of occupancy to occupy vacant units. Consider changing the term under the Code of Ordinances.

Certificate of Completion Some jurisdictions will issue a Certificate of Completion for projects that have passed a final inspection but are not finished out for occupancy, such as a shell building. There is nothing in the building code regarding a Certificate of Completion.

Deposition Tips Listen to the question and only answer the question you are asked. Don’t answer the question you think they mean to ask you. Think before you answer, and express the answer in the shortest and clearest manner possible. One word if possible. Be accurate and don’t guess. If you don’t know or don’t remember, say so. Pause before you answer. Remember the person taking your deposition is not your friend. It’s not your job to educate them.

Deposition Tips Be careful about giving absolute answers unless you are sure. Correct yourself if you realize you made a mistake earlier in the deposition. If you are uncomfortable or have questions for your attorney, ask to take a break.

Deposition Tips

What does the judge care about? Property rights Safety and preventing injury Detailed documentation