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Navigating Legal Liability: Grandfathering in Residential Building Codes

A few weeks ago, I had the pleasure of being engaged on a railing defect case for a plaintiff that resulted in a policy maximum win. A crucial part of the defense’s argument was that the substantially out of code railing was original from the 1950 construction of the home and should be “grandfathered” in as allowed by the International Residential Code. However, this property had undergone substantial renovations from top to bottom, with only the staircase and railing appearing to remain original. Through most municipal standards, a remodel of over 51% of a building should require the entire building to be brought up to modern safety codes when possible. I believe my argument of this point was a substantial factor in the jury’s decision.

The concept of "grandfathering" in residential building codes carries both practical implications and legal complexities. Grandfathering involves exempting existing buildings from new codes as they’re rolled out. It ultimately tries to balance preservation and safety while considering what’s practical for a standard owner to perform on. However, this approach is an intricate weave between historical significance, safety concerns, and legal liability.

Safety is always paramount, but houses and buildings hold cultural and architectural value. Consider an old house with intricate designs that have endured for generations. Applying current building codes could jeopardize its historical charm and entail substantial expenses. Grandfathering offers a compromise, allowing such structures to maintain their character while adhering to the safety norms of their era. However, as substantial costs are incurred to remodel properties over time, the expectation must be that they’ll be brought up to modern safety standards when reasonable.

Beyond a substantial remodel, the legal waters surrounding grandfathering can get even murkier. Consider a home with knob and tube wiring, which was phased out in the 1940s. This poses a substantial risk to residents, particularly with modern electrical demands. Many municipalities would require replacing this to rent to a prospective tenant, as grandfathering it in poses little to no historical value while posing substantial safety risk.

While these items can be looked at on a case-by-case basis, it’s important to always improve the safety standards of your home or properties whenever it is feasible. The landlord in this case spent tens of thousands of dollars making modern cosmetic improvements and left the biggest safety risk in the home, the handrailing, untouched. Consider a safety assessment at the start of any remodel and ensure you’re putting the safety of the people you invite onto your property first. Grandfathering is often used to excuse not spending to improve safety when it should be used to understand the importance of preserving our character and history.


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