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I suppose this is a bit more general, but I would like to know how inspectors and jurisdictions have handled cases where there's nothing that can be done to bring something up to code.

As an example, I have a bathroom that's 4x7'. Pretty much everything about bathrooms has the width at 5' minimum, so there's one problem already. The bigger issue is that in order to place a sink, toilet, and shower, I have to violate the regulations around one of them because of where the door (and a window) are placed. I can't install a shower that inscribed a 30" circle because then I'd have no space left for a toilet (which should have a 30" total width clearance), especially if I wanted to give it appropriate clearance in front of it.

I could go on, but what tends to happen in these types of situations? Does it become a case of, "Well, you did the best you could do"?

  • "Go knock a wall down?" – ThreePhaseEel Dec 31 '17 at 3:32
  • @ThreePhaseEel I genuinely wish I could... In one wall is the main drain vent and the other is structural (and would cut heavily into the bedroom). – Hari Ganti Dec 31 '17 at 3:38
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    Ah, that's an important constraint indeed! – ThreePhaseEel Dec 31 '17 at 3:39
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    I've always found that it's best to ASK the inspector how to solve the problem. I've found by asking for their help/advice, that variances magically appear. – Tyson Dec 31 '17 at 15:35
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    Was the house originally built/remodeled and approved that way? Generally the answer is either a) you are grandfathered, b) the variance they originally got is still good, or c) the original job was gypsy and must be ripped out. – Harper - Reinstate Monica Dec 31 '17 at 21:38
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To my knowledge, there isn’t a “Bathroom Requirement Cop” that goes around trying to catch non-compliant bathrooms.

However, if you remodel your bathroom (with or without a Permit) you’ll need to comply with the then current code. The consequences of non-compliance can be severe: 1) If someone has an accident because of something you did (or didn’t do), your insurance may not cover you, 2) If your house burns down your insurance may not cover the cost to re-build a non-compliant structure, and 3) when you sell your house, you’d better disclose the non-compliance, or you’ll pay for a giant remodel.

1) As my accountant explained to me, make sure you have insurance in effect or if there’s an accident, I may be paying this person a check each month until they graduate from Harvard.

2) Generally, Fire insurance is a “Build-Back”. When you want to fix the bathroom problem, they may say the policy is void. (As you can imagine, insurance companies don’t like insuring non-compliant structures.)

3) I testify on behalf of buyers “who were mis-led” and want restitution. Beware as a seller.

The good news, there’s a Chapter in the Code that allows existing conditions to remain, except for A) lack of smoke detectors for bedrooms, and B) non-tempered glass in sliding doors, windows within 18” of the floor or within 12” of a door. (See ICC Chapter 34.)

So, if you’re thinking of working on your bathroom and do NOT want the Building Department involved, there is a way. A little known fact, the Code is divided into two categories: 1) Alterations, Repairs and Additions, and 2) Maintenance. Nowhere in the Code do you need a Permit for “Maintenance.”

Maintenance is for: 1) non-structural, 2) no change of occupancy classification, 3) no change in exiting requirements, and 4) no alteration, repair or addition, of course.

I’d still ask the local Building Official if it’s Maintenance before you start, because someone may look in the window and see construction and turn you in because you parked in front of their house 3 years ago and “will show you what’s-what.

If that still doesn’t work for you and the Building Official thinks you should obtain a permit and comply with all requirements, there is an Appeals Board in each State. They generally meet at least twice a year, depending on number of applicants. So, plan ahead. (Tip: offer an alternate idea to “nearly comply.”

  • Unfortunately, any remodel I do will necessarily involve removing a partition, and (if I'm lucky) relocating a window, so I'm pretty sure I won't qualify under "Maintenance." After the holidays, I'll see if I can schedule a meeting with the permitting office in my city to see what the options are. – Hari Ganti Dec 31 '17 at 20:17
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Depending on the circumstances, the Permit Issuing Authority will either forbid the construction or grant a written "variance" from the rule. Sometimes a variance will have stipulations.

As an example, in my area the electrical service for a new or remodeled residence must be buried. In my case, the nearest available power service was on a pole that already had the maximum number of underground feeds. I received a "variance" in the form of a stamp on my blueprints from the city inspector.

  • I guess it's a little obvious that the answer is either being granted an exception or being denied permission to build, but I appreciate it and the example! It's good to hear that variance is occasionally allowed. – Hari Ganti Dec 31 '17 at 4:21
  • @HariGanti Whoa...A variance for WHERE something goes is entirely different than a variance of NON-COMPLIANCE. The requirement for the electrical service to be underground is a “Planning Department “ issue, not a Code issue. – Lee Sam Dec 31 '17 at 4:57
  • @LeeSam Thanks for the clarification (and for the additional answer below). – Hari Ganti Dec 31 '17 at 20:13
  • @Lee Sam, while I do not disagree with your answer, you are technically incorrect in your comment above. A government entity often has their own set of Codes; these can be, and often are the final and only applicable code (other codes and standards are often included by reference, of course). My city's requirement for buried electrical service is required by code, the municipal code. A "Planning Department issue" may very well be based on "code", just not the code you are thinking of. – Jimmy Fix-it Jan 1 '18 at 2:15
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    Yes, I understand. @JimmyFix-it and I got off topic. There are only a couple of clearances required by Code. My experience is that the Building Officers are very lenient. I think asking the Building Department “how to solve the issue is best. (Do you believe in asking for permission or asking for forgiveness?) – Lee Sam Jan 2 '18 at 7:11
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Most U.S. jurisdictions are willing to grant an exception to the current rules for a situation where the homeowner can demonstrate that all of the following apply:

  • The situation (that does not comply with current rules) was in compliance with the rules at the time it was created.
  • If any permits or inspections were needed at the time the situation was created, those permits or inspections were obtained or performed.
  • The situation has continually existed since it was lawfully created.
  • The unit has never been vacant for an extended period of time (such as 6 or 12 months).
  • The proposed changes make the situation better than it was before.
  • It would be economically impractical to increase the scope of the project to fully comply with the current rules.
  • The homeowner has acted in good faith. For example, the homeowner consulted with the "Authority Having Jurisdiction" before making the changes, and obtained (and complied with) any permits that were required.

Typical standards for "economically impractical" are ideas like:

  • Compliance with the current code would increase the project cost by more than 20 percent.
  • Compliance with the current code would require moving wall(s).
  • Compliance with the current code would require moving structural framing.
  • Do you know if it truly is all that must apply? In my case, I can only assume the building was built to whatever code existed in 1927, and that it was permitted (if permitting was even a thing then); however, I can't prove continuous residence. – Hari Ganti Jan 2 '18 at 21:12
  • For some purposes, some jurisdictions have a rule that the use has to have been continuous. For example, many California jurisdictions will allow a theater that does not meet current earthquake code to continue to operate as a theater, but will require a full earthquake retrofit if the theater use has a 12-month lapse. This rule tends to be much more lenient for single-family residences. If in good faith, you are under the impression that your residence has been a single-family residence the whole time, you should be good. If you don't know one-way-or-the-other, don't raise this issue. – Jasper Jan 3 '18 at 0:55

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