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Chris Bernhardt
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Can someone help me understand an apparent contradiction in the building codes.

Usually with respect to the installation of anything the code will say to install in accordance with the manufacturers installation instructions.

Now lets take a drip pan under a hot water heater for example. The typical instructions these days say that its a must. Our State official has made it clear that the code doesn't require them except in attics but he says nothing about the fact that they are recommended by the manufacturer and stuff should be installed to their directions if its more restrictive.

The same is true for replacements of hot water heaters and furnaces in areas now longer allowed like bathrooms. Code says no you can't install but since it was allowed at the time of original construction it may continue even if the MII says otherwise "don't install our product in the bathroom!"

I see stuff all of time not installed in accordance with the MII but because the unlined chimney or the bathroom were prexisting it is somehow ok to continue to install them in and to these bathrooms, unlined chimneys etc.

Is there a contradiction? which takes priority the MII or the grandfather clause in the building code?

Chris, Oregon

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Hi Chris,

My position is that, regardless of the rules that allowed something "back then", when it's replaced it should be brought up to current code, and the manufacturer's instructions, when more restrictive, detailed or safer than what the muni guy accepts, always trump code.

Works for me.

ONE TEAM - ONE FIGHT!!!

Mike

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Chris,

R102.4 has this exception:

Where enforcement of a code provision would violate the conditions of the listing of the equipment or appliance, the conditions of the listing and manufacturer's instructions shall apply.

Originally posted by Chris Bernhardt

Can someone help me understand an apparent contradiction in the building codes.

Usually with respect to the installation of anything the code will say to install in accordance with the manufacturers installation instructions.

Now lets take a drip pan under a hot water heater for example. The typical instructions these days say that its a must. Our State official has made it clear that the code doesn't require them except in attics but he says nothing about the fact that they are recommended by the manufacturer and stuff should be installed to their directions if its more restrictive.

The same is true for replacements of hot water heaters and furnaces in areas now longer allowed like bathrooms. Code says no you can't install but since it was allowed at the time of original construction it may continue even if the MII says otherwise "don't install our product in the bathroom!"

I see stuff all of time not installed in accordance with the MII but because the unlined chimney or the bathroom were prexisting it is somehow ok to continue to install them in and to these bathrooms, unlined chimneys etc.

Is there a contradiction? which takes priority the MII or the grandfather clause in the building code?

Chris, Oregon

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Yes, the code is the very worst your legally allowed to construct by law.

Theres a lot of builders and installers who thinks its the model of perfection.

The code these days originates from a politcal process, has always been rather arbitrary and is not generally scientifically based for any particular situation.

The muni's get to turn their brain off once they find a contravention. We have to try and help our clients understand its importance when it really has any.

Chris, Oregon

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Here and on other boards there seems to be an emerging theme of "code". This is an extremely complex subject within the home inspection business.

I usually keep pretty quiet as I lurk around the topic!

Here are a few of my thoughts:

1. Code will cause the average inspector more grief than good.

2. An attitude that your work and work product must somehow be validated by code or mfg instructions will lead to your demise as an inspector.

3. A growing number of inspectors seem to be acting as a "reader" of the code and/or mfg instructions.

4. Inspectors are not an enforcement entity.

5. And now for my personal thought: I think inspectors are getting pretty arrogant and self-important. They have taked the inspection process of educating people about the house and now are on a witch hunt for flaws and defects - both real and imaginary. I am experienced enough in this business to know Kurt, Scott P, Scott W, Jim K and dozens more like them, can follow my inspection and make me look like a fool! Especially if I was inspecting to code and mfg instructions! DO NOT READ THIS AS "DO NOT USE AND CITE CODES OR MFG INSTRUCTION. Please read this as: Get to know your role, limitations and customer's expectations and strive to meet them. Be confident by way of education and remember this entire business is predicated on your opinion at that time and place.

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I don't know which came first the chicken or the egg. The class of clients maybe thanks to the California lawyers running around calling every single contravention of code, standard and MII a serious construction defect are looking at the house this way.

My ol fart clients can be either or. Some ol farts are very serious about me making sure the house is to "code" I don't think that the HI's have created this problem.

I think that its being created on all sides. I like most HI's I know are very sensitive to want thier clients are looking for in the inspection. I have said it before I tried to stay out of the whole code thing etc. but have had to enter the playing field due to complaints from my clients. I have had to educate my self because of all the jerk contractors out there who don't know what the hell their talking about either.

I think that we are stuck with considering codes, standards and MII's in our work because our clients are considering them. I agree we have to know more so that we can educate our clients and bring back some much needed common sense to this mess.

Chris, Oregon

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Chris,

Did not mean to say an inspector should not know code, just the inspector should not try to enforce code; directly or indirectly. A code compliance inspection is not at all like the typical pre-sell or pre-purchase inspection and they should not be confused by us or the client as such.

Everywhere we operate the last line in the "code" is "Or according to the discrection of the local muni bld official".

Rather then try to educate the client regarding code's intention, many inspectors use it as a validation of their work.

Consider this: Who cares is the rise on the last exterior step is 4"? Well it is a violation of code, but more importantly it is a trip and fall hazard! You can write it as Section 275-2c specifically prohibits a rise of less then xxx and get everyone crazy or write the last step is too short to safely use. Or some other phrase.

Maybe I don't fear as many attys who fear me.

Chris, don't take this personally but it is a water heater not hot water heater. Sitting in a witness chair and having that common error destroy your hard work is discouraging. When the dark side comes after you there is no mercy for those that profess expertise in the hundreds of things we inspect. INCLUDING ME WHEN I GET TO FEELING A LITTLE FULL OF MYSELF! Courts acknowledge common useage of terms, but will slap you around a courtroom if you try to be selective when you use common terminology.

Most of the time I could care less what the code was when the house was built or if there was even a code, much less the mfg instructions. If it looks wrong or ain't working or a safety issue then it gets reported. Never recommended AFCI's in any house!

more later!

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Well this is what gets me. There are a number of things that I see which are some sort of contravention of something but really there nothing wrong with it. Well, at least in my opinion.

For example that dam NM cable that we see run unprotected all over the place. I am sick and tired or writing it up when in my opinion it was neatly done and does not pose an unreasonable risk. However there are times when it is not neatly done and poses a heightened risk.

If I say in my opinion that it is neatly done etc. whats going to happen when I get to court? I imagine its easy for a lawyer to make me look like an idiot for not advising the client that it should be protected becasue that is what the code says.

I have seen these EW reports that make the inspector or contractor look like some negligent jerk. I even had that happen to me once when a client got upset and called in another inspector who wrote up this code and that code etc. How are we suppose to protect ourselves from the enemy within?

How do you advise reporting incorrect items that are purely contraventions but are otherwise really not a problem in that particular case and not have it come back to haunt you?

Isn't really the clients and their lawyers who are confused trying to make us into code inspectors?

It seems that its just easier to write them up and notify the client that the thing is not correct and should be made correct just to CYA.

To try explain to the client that the code is full of crap, well sometimes and in somecases like for example crawlspaces, theres just no way they are going to consider that credible.

Perhaps if I had the writing skills of Mr. Katen I might be able to skillfully explain it but I don't. Thank god, Jim is here to help.

The matter frustrates the hell out of me cause I have no reason yet to see it other then a dammed if you do and dammed if you don't proposition.

Chris, Oregon

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Les,

Well put. I always try to state the consequences of not following my advice, rather than regurgitating the code. I don't mind stating the code as an aid to the client, but I make sure they know this is not code enforcement - I make that clear verbally and in the written report.

Originally posted by Les

Chris,

Did not mean to say an inspector should not know code, just the inspector should not try to enforce code; directly or indirectly. A code compliance inspection is not at all like the typical pre-sell or pre-purchase inspection and they should not be confused by us or the client as such.

Everywhere we operate the last line in the "code" is "Or according to the discrection of the local muni bld official".

Rather then try to educate the client regarding code's intention, many inspectors use it as a validation of their work.

Consider this: Who cares is the rise on the last exterior step is 4"? Well it is a violation of code, but more importantly it is a trip and fall hazard! You can write it as Section 275-2c specifically prohibits a rise of less then xxx and get everyone crazy or write the last step is too short to safely use. Or some other phrase.

Maybe I don't fear as many attys who fear me.

Chris, don't take this personally but it is a water heater not hot water heater. Sitting in a witness chair and having that common error destroy your hard work is discouraging. When the dark side comes after you there is no mercy for those that profess expertise in the hundreds of things we inspect. INCLUDING ME WHEN I GET TO FEELING A LITTLE FULL OF MYSELF! Courts acknowledge common useage of terms, but will slap you around a courtroom if you try to be selective when you use common terminology.

Most of the time I could care less what the code was when the house was built or if there was even a code, much less the mfg instructions. If it looks wrong or ain't working or a safety issue then it gets reported. Never recommended AFCI's in any house!

more later!

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Hi,

Les said...

Rather then try to educate the client regarding code's intention, many inspectors use it as a validation of their work.

Amen, Brother Les.

And why, praytell, has this come about? Well, Chris said...

I think that we are stuck with considering codes, standards and MII's in our work because our clients are considering them.

Righteous, Brother Chris, absolutely righteous.

And why is it that Joe Homeowner would be concerning themselves with such things? Could it be that they do not perceive any uniformity in the practice of the profession (if they even look upon it as a profession)? Could it be that they have not perceived any value in the esoteric "standards" of organizations such as ASHI, NACHI, et al? And, the biggest question of all, will the focus of this profession be to 1)take the path of least resistance and simply "fall back" on standards/codes/instructions established by others, reciting them ad nauseum, or 2)actually evaluate the home/building in a systematic manner, using the s/c/i's as guidelines to ascertain whether or not these various systems are "functioning as intended", and then communicate that evaluation in a professional manner?

And the congregation says...?

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Haven't most of the codes originated from sort of real-life circumstance anyway?

An irregular step is a safety hazard - agreed. But why? Common sense or code?

I've tried to come up with a list of all the codes that I thought were ridiculous. I didn't get far except for one example (too long to detail here).

Which codes are "full of crap"?

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Originally posted by Chris Bernhardt

Les, what did you mean?

Courts acknowledge common useage of terms, but will slap you around a courtroom if you try to be selective when you use common terminology

Can you give some more examples?

Chris, Oregon

Using the following can cause you some heartburn in court or in depositions:

1. Sheetrock instead of drywall

2. Romex instead of NM cable

3. Jacuzzi instead of hydro-massage tub

4. Whirlpool tub instead of hydro-massage tub

5. Hot water heater instead of water heater

6. Dryvit instead of EIFS if it is not Dryvit brand.

7. Above and beyond ASHI Standards.

8. To ASHI Standards when you do not belong to ASHI.

I'll try to think of some more that I have seen folks getting raked over the coals in a court room or deposition. But the above are the most recent that I can recall.

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Chris,

Common terms like drywall are often mis-used. When you and I talk about a specific house to each other, we would say "The drywall job is crappy". When we report to our customer we might say "The finish on the drywall is poor. This poor workmanship blah blah blah." Whe I get called in as an expert and comment on the drywall system, I might report/say "The gypsum board was improperly fastened and is falling away from the walls." The next question from the atty might be "Where was the hot water heater leaking?" My answer has to be "The water heater was leaking at the water shut-off valve." It can not be "The hot water heater was leaking at the cold water shut-off." In the first example I come across as an "expert" using gypsum board terminolgy correctly and the second example I incorrectly used hot water heater - a skilled atty should pick up on that and challenge your creditability.

I just read a quote from Richard regarding a raked window and wondered did he mean raked or skewed? There is alot of difference and I think he meant skewed. Nothing personal here - but does he know the difference? You used the acronym NM - what does that mean? Well, because of codes, we know that means non-metallic; non-metallic what? wire, covering, insulation, etc.. Where did NM come from? UL, IBEW, Anaconda, Chicago, ASTM, RS Means, AIAA, etc. Can you really explain to a jury as an expert? - no, yet they would understand with just a little explaination.

My point is, as several people on the board know, if you use the words you had better know a whole bunch more than the average person and surely more than the opposition atty. Keep it simple on a daily basis and strive for your client's understanding and remember it is just your opinion and experience. Don't inflate your experience and try to minimize your boilerplate crap. That boiler is usually another persons words.

Back to "code". If you are doing code inspections you had better know all of them and all the different local variations. Where I am sitting right now may be a good example: Michigan model energy code, charter township official, ICC for residential, except hvac and electrical, state for electrical as adopted by the tiny city within the twp that is within the cty that is within the state and within BOCA and ICBO and ICC except for modulars and, depending on the wind direction, poured vs block foundation vs wood ---------.

And all this in a state where inspections have NO regulation. I do not endorse regulation, only threw that in to make a point.

Some of my favorites are:

OSB and plywood

MDF and particle board

black pipe and iron pipe

PVC and ABS and CPVC and PEX

Asphalt shingles and three tab shingles

furnace and boiler and hydronic heater

breakers and dis-connects

sump pump and pump

doors and windows and fenestration

exterior walls and thermal envelope

gable roof and hip roof

screws, nails, adhesive, caulk and fasteners

etc

maybe more later!

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Les, I use the words "tar flashings" to describe when someone has just taken some black substance that could be tar or some other bitumous mixture and gooped it over shingles and flashings.

Are you saying that making such generalizations is going get a guy in trouble if it ever gets into court?

If so then where does a guy look for a guide on proper phraseology that will stand up to legal pumelting

Chris, Oregon

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It may not get you into trouble, but you just need to be able to explain and backup your explanation. Tar is not flashing. Tar is tar and will fill voids, etc. When I find something like you are describing I just say something like "a copious amount of black sealant has been used in an attempt to seal an area that needs proper flashing"

Court and the attorneys can be fun, you just need to know what to say and what not to say!

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Originally posted by Chris Bernhardt

Thanks Scott.

So I take it that one of the tactics will be for the opposition atty to pick thru your terminology to try and make you look incompetent.

Chris, Oregon

I don't have as much time on the witness stand as Les has, but so far I've never had the type of experience he's described. I've always made it a point to use common terms for building materials and all parties seem to appreciate it. If I started talking about gypsum wallboard, most of the people in the courtroom wouldn't know what I was talking about. Maybe it's an Oregon thing.

Also, every time I've been in court everyone on both sides has treated me with deference & respect. It feels kind of odd, actually.

My favorite courtroom moment occurred just after I was sworn in and the attorney started reviewing my qualifications, the judge interrupted.

Judge: Ahem. I feel that I need to tell everyone in the courtroom that I'm acquainted with Mr. Katen. Unless I'm mistaken, he inspected the home that I'm currently living in. Is that right Mr. Katen?

Me: Yes, your honor. In fact, not only did I inspect the home you bought last year, I also inspected the home that you sold.

Judge: That was you! Well, then, if we're establishing expertise I have to say that the job that Mr. Katen did on the home that I bought was exemplary. He really knows his stuff. However, the job that he did on the home that I sold was absolutely terrible. I’ve never seen such incompetence before!

Both attorneys' jaws dropped and the courtroom was absolutely silent.

Judge: I'm being facetious people! Lighten up already! Mr. Katen’s great. Clearly he’s an expert. Let’s get on with the show.

- Jim Katen, Oregon

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Chris,

The point that Scott and me are trying to make is: Be sure your client understands what you are talking/writing about. But when you have to defend those words be aware the other side ain't your friend!

In actual conversational situations you have to be able to change from sheet rock to drywall to gypsum wall board to gypsum board to type x to greenboard to water resistant gypsum board blah blah blah.

Your tar example is wrong without ever seeing the site. It ain't tar. It could be mastic or sealant or wet surface roof cement but not tar. I am old enough to remember using tar from tin cans the size of soda cans; use a church key and poke two holes and pour it! And tar that came hard as rock in sizes up to 40lbs. Worked the tar bucket for my dad. It burns you without ever touching it.

My personal advice to all inspectors when they get into any silliness at all is to have an experienced inspector read your report and tear it apart, if it deserves it!

In my small metro area I have had Katen's experience twice and it makes your head the size of a basketball!

Recent experience: During a 6hour deposition I said repeatedly that I am an acknowledged expert regarding window installations. At the four hour mark the back-up atty questioned me about when I last installed a window. I said "In my deer blind last week-end" He was pissed and re-phrased it to "When did you last install a window for compensation with your own hands?" My answer was 1994. Skip ahead a couple of weeks. FOUR days of court time arguing about my expert status, five attys, three witnesses and 6 hours of my time at $xxx. I paid a company employee to sit in the courtroom and take notes. End result was my inclusion as an expert on WINDOW INSTALLATION and not an expert on WINDOW INSTALLING! Go figger!

I am not holding myself out as a home inspection report expert, however have read hundreds and hundreds both for and against inspectors and we all have flaws in our words and protocols.

Be careful.

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