How NOT to Argue About a Building Permit

July 10, 2022

By Brian Babcock

The Building Code Act protects important public interests including public safety and consumer protection. Because of this, the courts ensure that the provisions of the building code and the Act are enforced.

The Divisional Court reinforced these principles in a recent appeal from an application judge.

THE ISSUE

How serious is the need to comply with the Act? In addition to other powers, a number of provisions of the Act provide that a chief building official may order demolition of a building constructed without a permit (or for other reasons).

THE CASE

In Cavan Monaghan (Township) v. Kings Custom Homes Incorporated, the property owner began constructing a house on his property without a building permit. An inspector informed him that a permit would be required and would not be issued without a plan prepared by an engineer. When the owner failed to comply, the Chief Building Official issued a stop work order and required that the owner apply for a building permit and provide engineering reports. Once again, the owner did not comply. He continued with the construction. This led to a further order to stop work and an order to demolish and remove all structures.

When the owner again failed to comply, the Chief Building Official applied to the Superior Court for an injunction including an order for demolition of the building. The property owner took the position that a permit should have been issued, but the application judge rejected that argument.

However, the application judge declined to order the demolition on the basis that the finished product will be a “welcome addition to the community.” She also expressed concern about the environmental impact of the demolition and the waste of building materials.

On appeal by the Chief Building Official to the Divisional Court the application judge was found to be in error.

The proper remedy for a property owner dissatisfied with the decision of a Chief Building Official is to bring an application to the Building Code Commission (for technical interpretation of the Code) or the Superior Court on legal issues. Going ahead and building without the permit is not allowed.

If the application judge’s order was allowed to stand, it would undermine the entire Building Code process.

The Divisional Court overturned the Superior Court decision but still gave the property owner an additional 60 days to obtain a building permit. After the 60 days, any work or construction carried out without a permit would need to be demolished. If the property owner fails to obtain the permit or demolish the building, the Township is authorized to demolish the building and add the costs to the property taxes.

THE TAKEAWAYS

Although there is nothing surprising in this decision to lawyers familiar with the Building Code, it may be surprising to some property owners. Because of that, it is a useful reminder of the need:

  • to comply with the Building Code;
  • obtain building permits where necessary;
  • not to continue construction if faced by a stop work order; and
  • to appeal to the proper place on a timely basis if there is a dispute.

You should also remember that building permits are not only required for structures such as new buildings. They may be required for certain types of decks, fences, outbuildings, or interior renovations which affect the structure of the existing building. Any of these types of construction carried out without a building permit may result in order to demolish what you have built. It is safer and better practice, not to mention cheaper, to simply comply with the Code in the first place.

WHAT WEILERS LAW CAN DO FOR YOU

Not all Building Code disputes are as straightforward as this one. Some of them involve engineering issues which require expert advice. Others contain issues of legal interpretation of the Building Code or the Act.  In those situations you need timely and experienced legal advice.

Although the homeowner in this case may not have received a satisfactory result even with the best legal advice, they would at least have taken the proper procedure to have the Chief Building Official’s orders reviewed either on a technical basis by the Building Code Commission or on a legal basis in Superior Court. Both of these processes have procedural requirements and timeline requirements. Trying to sort this out yourself is always challenging. That is where the expert and the legal advice comes in.

Not every lawyer wants the challenge of working with your experts, or of arguing technical issues in Superior Court. Whether you work for a municipality in enforcing the Code, or are in a difficult position as a property owner or contractor attempting to comply with the Code, Weilers Law has the experience and knowledge to work with your experts to attempt to resolve the situation through negotiation. If that is not possible, we  can vigorously represent your interests in court. If you find yourself confronted with a difficult Building Code issue and need legal advice, Weilers Law may be the right lawyers for you.