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Cracking the building code(s)

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One of the very first questions asked in many premises liability cases — whether those cases involve structural collapse, fire, water penetration, personal injury, accessibility, or a host of other issues — is, “What does the Building Code say on the matter?”. To begin to answer that question, one must first understand just exactly what the Building Code is — and what it is not.

Generally speaking, a building code is a collected set of regulations that define the minimum requirements of a particular type of physical construction of our built environment. That physical construction may be a complete building, or it may be any of a number of building components or appurtenances, such as a parking garage, stairwell, elevator, porch, canopy, ramp, sidewalk or parking lot. The minimum requirement established may be one of clearance, dimension, strength, load-carrying capacity, fire-resistivity, moisture-resistivity, sound-attenuation, thermal performance, etc.

A building code may define prescriptive minimum standards that set forth exactly how something must be dimensioned, constructed, or assembled. Alternatively, a building code may define performance minimum standards that merely set forth the required resultant performance of a particular material, assembly or construction, leaving the particulars of the complying result to the discretion of the architect, engineer, builder, or owner.

Building Codes have a long and colorful history, beginning with the Babylonian Code of Hammurabi of almost 3900 years ago, and extending through to the modern day. After the 1666 Great Fire of London, stricter regulations controlling such features as clear street widths and fire-resistivity of structures were passed for that teeming metropolis. By 1844, The London Building Act had become the first national building code. In the United States, the City of Baltimore, Maryland passed its first building code in 1859. Throughout the subsequent half-century, most of the larger American cities or states passed local, regional or state building codes. The State of Ohio established its first Building Code in 1911.

Some of those building codes dealt only with commercial structures, some only with residential structures, and some with both. Some were established by individual states, some by individual cities or towns, and some by loose federations of towns, villages, and outlying rural areas. Some were also developed by independent or industry groups, to serve as ‘model codes’ that could then be adopted or endorsed by any interested jurisdiction. Furthermore, building codes were typically regularly updated, often in 3- to 5-year cycles, to incorporate new situations, revised risk assessments, and technological improvements in construction. For example, whereas paint containing lead was once widely used across America, today we may shun paint that merely off-gasses a trace of volatile organic compounds (VOCs). Likewise, smoke detectors have become increasingly required in all residential construction, leading to substantial declines in the number of annual fire deaths. As a result, building codes could historically vary widely from year to year, and across different jurisdictions.

In recent decades, there have also been strong pressures for consolidation and unification of building codes. First, any given building code may run to thousands of pages of quite specific regulations. The building code is thus quite logistically burdensome to draft, edit, enact, publish, apply, and enforce. Architects, engineers, builders, owners, and local regulators must devote great time and energy to reading, understanding, and interpreting the building code. Second, the variability of building codes across jurisdictions ill serves the public as well as the entire range of trades involved in construction and related manufacturing. Why is one form of handrail considered safe in one jurisdiction but not in another? Why is one type of structural sheathing accepted for use in one jurisdiction but not in another? Third, case law developed from successive decades of premises liability litigation further exacerbates the variabilities among building codes.

These pressures have led to increasing unification of building codes into what may soon be deemed a truly ‘National Building Code’ for all of the United States. The Southern Building Code Congress International (SBCCI) was founded in 1940 and began developing and refining the Standard Building Code (SBC) model building code, with widespread use throughout the southeastern portion of the continental US. The Building Officials Code Administrators International (BOCA) likewise developed their own model code, the BOCA National Building Code (NBC), applied throughout the East Coast and parts of the Midwest. Areas of the West Coast and remainder of the Midwest employed the model Uniform Building Code (UBC) developed by the International Conference of Building Officials (ICBO). These three building codes are sometimes referred to as ‘legacy codes’, as they are no longer in use, but have served as the basis for subsequent codes.

Finally, in 1994 these three primary ‘legacy code’ drafting agencies joined as the International Code Council (ICC) to develop building codes that could be applied nationally across America, with no regional limitations. By 2000, the ICC’s International Building Code (IBC) had been completed; it has since been adopted throughout most of the country.

Yet the International Building Code is still not the entire story. In addition to the ‘base’ IBC, the ICC has also developed the International Residential Code (for 1- and 2-family dwellings), the International Mechanical Code, the International Plumbing Code, and the International Property Maintenance Code to cover those specific realms (along with many others for ever-more-specific applications). The National Electric Code is also often adopted and enforced by jurisdictions, as are regulations of the National Fire Protection Association (NFPA). Typically, the requirements of ANSI/ICC A117.1 Accessibility for the Handicapped are also adopted and enforced. The particular building code in use may make further reference to independent standards — often scores, if not hundreds — that must be met. These include standards of the American Standards for Testing & Materials, ASTM International; American National Standards Institute (ANSI); NFPA; the American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE); the American Society of Civil Engineers (ASCE); and many others.

In addition to all of these, any particular premises may be further bound by local ordinances and regulations, including pertinent provisions of the zoning code, local building department standards, FHA/HUD standards, the Fair Housing Act, tenant-landlord law, local inspection requirements, local police and fire regulations, and the like.

In any instance of potential premises liability, it therefore becomes paramount that a correct initial determination be made as to what provisions of the building code and related ordinances or standards may in fact be binding upon the incident location, and to what degree. Such a determination is best made with the assistance of a professional competent at reading, understanding and interpreting the many varied — and at times ambiguous or conflicting — provisions of such regulations.

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