Monday, February 24, 2014

REI of Virginia Members Having A Problem With Rental Inspections and C/O’s


So there are two different things that the city wants landlords to have on each and every house. A valid rental certificate if the house is in a low income area which they have defined as a rental inspection district, and a certificate of occupancy (CO).

We all know what the rental certificate is however some aren’t familiar with the CO. A CO is essentially a stamp of approval that says specifically that a property is up to the code at the time it was built and it has been approved for a very specific use. For example it has been approved as a single family house or a triplex or an apartment building, or a very specific kind of business, etc.

The city decided that they wanted to push towards getting every property a valid CO so they put together a plan where they would allow a landlord to get a CO and their rental certificate at once and at no additional cost beyond the normal cost of a CO.

Just for a little review of history, Virginia Code states that every property from the time it is built has a CO. However there was a time that was pre building codes in Virginia. And houses that were before the building code existed are grandfathered in. Code states that if a house was built in a certain way that was acceptable at the time it was built, the city code enforcers and building inspectors can’t make you change it to bring it up to todays code. That is only if you are doing an “in kind" repair. If you are doing more than a simple repair than the work you do has to be of todays standards.

This was a little protection that our state level politicians had to put into law because they found that cities and towns across the state were taking advantage of the code and harming their citizens by ordering complete renovations of houses every time the code was updated. Give em an inch and they take a mile every time.

So to make it clear, you do not have to have a CO as long as the house was built pre building code which almost every house in the city was. AND as long as the use wasn’t changed from the use prior to the state accepting the building code. The burden of proof is on the city that the use has been changed since the implementation of the code.

The city has historically attempted to make people feel like they have to have a CO but this is not true. They have done such a good job at this that there have been a number of Legal Aid cases against landlords historically where Legal Aid was using a defense that the tenant should not have to pay any rent for the entire time they were there based on the house not having a CO. Legal aid in these cases was confusing this with a rental certificate which is a completely different thing. Unfortunately the landlords I talked to did not adequately represent themselves and they lost thousands of dollars due to their lack of knowledge of the law.

If you wish to confirm the laws on CO’s click the link below. It’s important for you to understand the law as you will be taken advantage of if you don’t.
https://leg1.state.va.us/cgi-bin/legp504.exe?000+reg+13VAC5-63-160

I continually get complaints from our members about this Rental Certificate / CO issue so I sent a message to Chris Chittum about the issue hoping he would resolve it and make everything easier on landlords if they want to keep pressing this CO issue. Below is my email to him and then his response. I told Chris I would send this to you so we are all up to speed on the issue.

Essentially his response is that there will continue to be multiple inspections by both code enforcers and building inspectors if you desire to get a CO and they will put a plan into action to make the process easier for you to understand.

Hi Chris,

Our members are having some issues regarding the communication between city departments that I was wondering if you could help with.

A number of times every month members are contacting me asking questions regarding certificate of occupancies and rental certificates. In the past it was Tom Carr’s position to not have a duplication of services as to avoid unnecessary costs to the taxpayer considering that building inspectors are as qualified if not more qualified to do a rental inspection. I talked to you about this issue as well and you agreed regarding the duplication of services.

It is possible that the code enforcers feel like the building inspectors are stepping on their toes if they do the rental inspection and maybe this is what is causing the problem. I’m not sure.

Over the years the city has had a desire to get all properties a CO so when you request a CO you also got a rental inspection at no additional cost. Currently our members are having issues thinking that they got their rental certificate when they got their CO or having code enforcers threaten them that they must get a rental certificate after getting the CO. This issue sets landlords up for a lawsuit from the tenants which is not desired.

If you could think of a good solution that’s also good for the taxpayers pocket it would be greatly appreciated.


Best regards,


Dallas Powell
Chairman
Real Estate Investors of Virginia
1417 Peters Creek Rd.
Roanoke, VA 24017

Cell: 540.293.2335
Dallasjr@PowMarCom.com


Dallas,

I talked with Neil Holland, Building Commissioner and Dan Webb, Codes Compliance Coordinator about the process for bundling a C.O. and a Rental Certificate.  I understand that we have been doing this experimentally for about a year or so. We now know that it can work, but have learned that we need better communication internally among ourselves and externally with customers.  The sequencing of the process is also important and is an area that we will work on.  I appreciate the feedback; bringing this issue to our attention will help us improve.

If there is construction on a rental unit that triggers the need for a
building permit, we encourage the owner to go ahead and get a C.O. at the same time (if there is no existing C.O.).  The C.O. validates the occupancy and that the units were legally established at some point.  This practice is mutually beneficial as it acts as a vested right to the property owner for a certain number of units.  It also prevents us from having to do a lot of pointless research in the future on whether the number of units were legally established or not.  For example, a 3-unit building in a single-family zone could have been established legally long ago under a different zoning.  That's fairly common.

The new practice is to include a four year Rental Certificate with the C.O.
An owner does not have to apply separately or pay a separate fee for it
when bundled with a C.O., but does need to be issued a written Rental
Certificate.  Apparently, we need to a better job of communicating this to
customers.

As things stand now, a single inspector cannot cover both construction and maintenance inspections because we are dealing with two separate codes: The Virginia Maintenance Code and the Virginia Construction code.   Tom Carr may have advocated such an arrangement before, but since we became accredited, each code requires different competencies and the inspectors must be certified in their respective disciplines.   We may at some point have inspectors cross-certified to do both, but right now we do not.  This means that it is absolutely necessary to have two different inspectors check the property, at least for the time being.

Another consideration is that the Virginia Construction Code requires that there be no violations of the Virginia Maintenance Code or Fire Code before a C.O. is issued.  So, what we try to do is coordinate those inspections to the extent possible.  When an inspection for the C.O. or permit is requested, the Combination Inspector should contact the Codes Compliance Inspector for that area and schedule a dual inspection.  What I — and I think some owners — are struggling with is the fact that, at final building inspection, a rental inspection may uncover a lot of things that need to be corrected, when the expectation was that both certificates would be issued at final.

Therefore, I think an initial rental inspection needs to be done earlier in
the game - before the final building inspection.  On final approach rather
than at touchdown, if you will.   That way, the owner has an opportunity to address rental inspection issues.  Then the dual inspection can be conducted at the end of the project and both Rental Certificate and C.O. can be issued at the same time.   Of course, all this varies depending on the amount of construction taking place, so each case is different.

What I plan to do in response is work with Neil and Dan to develop a
written internal policy as well as a customer guide for owners so everyone can be on the same page.  I hope that will make things run more smoothly for all involved.

Again, thank you for bring this issue to our attention.

Regards,
Chris

Chris Chittum, AICP          
Director of Planning, Building, and
Development
215 Church Avenue, SW Roanoke, VA 24011…
(540) 853-2356 (desk) (540) 815-0291 (cell)

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