How to grandfather a room addition

by Luis

Visitor Question: How do you grandfather an add-on to a house? I recently bought a house that had a patio enclosed without permits. Not knowing, I let a city inspector in and he says I need permits for it. Now on my taxes they added on huge penalty fees. Someone told me to try to get it grandfathered in since it has been there for years. How would I begin to try and do it?

Editors' Reply:

The answer will depend on your local laws as much as anything. So please check with your city hall so that you understand the relevant laws completely.

As a big generalization, every place that requires a building permit and has a building code would require a permit for any kind of room addition, including patio enclosure.

So it doesn't surprise us that you are having a problem like this.

We see two possible ways to approach it:

1) You said you bought the house "recently," but you didn't say how recently. If it was within the last year or two, call your real estate agent, if you used one, or the selling real estate agent, if there was one.

Depending on state law, you might have a legal case against a seller who did not disclose that part of the structure was illegal, and possibly a professional ethics case against the selling real estate agent, if you could show that the agent knew about this situation.

We're not lawyers; we're city planners. So we always advise people to try to work out a conflict before suing. But the threat of a lawsuit is a good way to get someone's attention.

Especially if there was no real estate agent involved, write a letter to the seller if you have an address. Explain the situation and ask for the money that the city is charging you in penalties, money for the building permit that they probably will charge you for (even though you aren't building anything new but just trying to make the problem go away), and most importantly, Luis, any money it will cost you to make sure you bring the enclosure up to code.

This last point is very important. Many times people don't buy permits because they just don't want to be bothered, but other times they plan to do the room addition cheaply and don't want to be inspected.

If the enclosure work is shoddy, it may not pass code, so be sure to include any money you have to spend to make it meet the building code in your written letter requesting payment.

Sometimes this works. A friend had your very same problem, and a call to the seller caused him to deliver a check for a goodly amount of money.

2) Now what about the suggestion to get the room addition "grandfathered"?

For our readers, "grandfathering" something in planning and construction matters usually means that something was legal at the time it was done, but since has become illegal.

So it's possible that this add-on occurred before your city had a building code. You need to research with your neighbors exactly when this room addition was made. If you can determine the year, then you can ask city hall about the laws at that time.

Or certain types of construction might have been exempt from having to comply with a code at the time this patio enclosure was constructed. Maybe that would have included a patio enclosure, although it doesn't seem too likely.

A final possibility is that in your particular city, the law provides that after a certain number of years, an illegal structure becomes legal. This is really quite unlikely, and if that were the case, it seems that the city inspector would have told you that.

So we're sorry to say it, but in this case the challenge of how to grandfather a room addition probably is a challenge you can't meet.

In that event, your best course of action is to try the legal route, as mentioned in 1 above. You don't have to actually hire a lawyer, at least not in the beginning. Just write a simple letter, have an educated friend read it over just to give you any additional suggestions, and send it off in hopes that the seller will be an ethical person who will understand his or her responsibility.

Another possibility is that after you learn when the enclosure was built, you see that the person who sold the house to you didn't even know. Then you would need to go back to the owner who enclosed the patio and try to get your money from them.

A last piece of advice is that you can talk to your city council person and also the staff at city hall about getting the penalties on the building permit reduced.

Be very nice to any city personnel that you talk with about this, to show you are a reasonable person. Your job is to convince all of them that you really didn't know about this situation and would like to have penalties forgiven, but that you will pay for a building permit in order to make your house legal.

If your house is out of code compliance, your insurance company might refuse to cover damages, so this is not a problem you can afford to ignore. Also it worries us that the city sent your notice about penalties with the tax bill; that sounds as if they were thinking they would file a lien against your property if you didn't pay. (A lien has to be paid when the house is sold, if not before.)

In short, we're pessimists about your being able to grandfather the room addition. (We keep calling it that because under most city law, that would be its category.) But we wish you all good luck; that would be the best possible solution.

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