1960s Rental Unit Found Unpermitted

by Worried
(Santa Clara County, CA)

Visitor Question:

Hello there,

I currently live in a downstairs unit of a duplex in an unincorporated area of our county. Long story short, the county has the last remodel on record as 1961, before permits were required.

The record doesn't match what is here at all. (Their records show a 2/1 860 sq ft home, but the current situation is a 2 story building, 2 independent units of approximately 1000 sq. ft. each).

Our landlord (who lives upstairs) recently purchased this property (less than 2 years ago). There was nothing disclosed about the 2nd unit being unpermitted and the building was listed as 2 separate units (one of the main selling features).

Many people in our neighborhood have lived in this unit at one point or another since the early 1970s. Basically, this place and both units have been here for at least 40 years if not longer.

Somehow, after sitting here this long, someone felt it important to report a possible unpermitted rental. A building inspector came out today to check the property and mentioned things such as house setbacks, retaining walls, replacing windows, changing the septic system, can the lot handle two units (12,000 sq ft) etc.

Our landlord is the 3rd owner with the previous owner having the property for 30+ years. Some of this could cost tens of thousands of dollars, something our landlord does NOT have which means he would have to sell and we'd have to move out.

How much of this is his responsibility? What is the likelihood of the unit being grandfathered in (since it is obvious by looking at the fixtures alone that it was built before permits were required) with only health and safety being required to be brought up to code? Is there legal recourse for him? It seems atrocious to me that something that has been in a tucked away area for decades not bothering anyone is suddenly a problem!

Editors Respond: We certainly sympathize with your situation. At least it seems like you are understanding your landlord's situation, which can only help both of you going forward.

To be realistic, we have to say that depending on what your local laws say, the county might be within its rights to issue citations for some of these things. In other words, sometimes laws enacting building codes (relevant to additions to the building), sanitation codes (relevant to the septic system issue), and even zoning ordinances (relevant to the setback issue and possibly a retaining wall location issue) can specify a time limit on conditions being "grandfathered in."

For the uninitiated reader, grandfathering means a technique in a municipal law whereby an existing condition that does not comply with a new law is allowed to continue to exist. Usually the limit on grandfathering is that the nonconforming situation is not allowed to be expanded. Grandfathering usually does not have a time limit attached to it, but sometimes it does--a key to finding a definite answer in this situation.

We who write for this site have heard of and participated in numerous situations, many of the most recent being in California, where an unpermitted addition is required to be demolished at the owner's expense.

In many other cases, the owner will decide to bring a building up to current codes, even at great expense, but obviously that depends on whether the market is hot enough that the owner can justify the investment.

However, it usually is a whole different matter if the additions or alterations were made before building permits, zoning permits, or septic system permits were even required. (Now as we said before, there can be exceptions, which will be clearly spelled out in the county ordinance enacting the requirements.) As our visitor alludes to, sometimes health and safety requirements are ironclad and must meet codes whenever an inspection is made. Of the examples given by our visitor, this would seem pertain to the septic system only.

So with this discussion as background, here are the concrete steps we would recommend for our visitor and the landlord:

1. Look for an attorney who specializes in real estate law, or possibly zoning or municipal law. Contact the local bar association to ask about these specialties. Gather facts and make an appointment. If the landlord cannot afford an attorney, there should be a nearby legal aid office, although their help often is limited and slow.

2. In the meantime, contact the county attorney's office. Occasionally citizens will get lucky and find that the jurisdiction's own attorney takes an interest in the situation at hand and will offer some useful free advice. Of course don't expect that attorney to work for you to the same extent as an attorney you hire, but sometimes that is a helpful conversation.

3. Also while waiting for an appointment with a private attorney, the landlord should have a phone conversation or meeting with the supervisor of the inspector who came out. Inspectors can and do make mistakes and exercise poor judgment, and especially in the case of a vague, multi-faceted oral report from the inspector, a citizen is well within rights to seek clarity from a person more highly placed in the organization. This conversation also can and should identify where there are processes in place to allow applying for a variance on some of these items.

4. With the privately hired attorney, the landlord should try to whittle down the range of complaints to those worth fighting about. In other words, the landlord may find one or two of the items to be worth correcting. In other aspects of the situation, the attorney may feel that the landlord has a very good case. The attorney may be able to write a well-reasoned and mildly threatening letter to the county to get rid of some items. But after the attorney and landlord finish their investigation and deliberation, some vexing problems may still remain.

Yes, those problematic issues could involve many thousands of dollars of expense for the landlord. However unfair it may seem, (and it does), resolving the matter of what unpermitted alterations to a rental property must be remedied is of utmost importance. This matter cannot be expected to just go away. Owner occupancy in the building may garner more sympathy for the landlord; let's hope so.

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