Walter W. Fischer, Trustee of the Walter W. Fischer 1993 Trust
v. New Hampshire State Building Code Review Board
In an alarming trend, municipalities are strictly enforcing the provisions of the Life Safety Code against existing buildings. It is well settled in the common law that the majority of new laws cannot be enforced retroactively. From the concept surfaced the term “grandfathering”. For example, many older buildings were built very close to the street. Since those building were constructed, municipalities have adopted zoning regulations that establish minimum set back requirements. Due to the concept of grandfathering, the existing buildings are not required to comply with the setback requirements.
In the case of the Life Safety Code, the Supreme Court found that the new provisions may be applied to existing buildings. The Court reasoned that any law rationally related to a health or safety concern can be applied retroactively. This decision is likely to have an dramatic impact on property owners. You can expect that whenever an seeks to sell a property, the buyer will conduct a life safety code inspection during the due diligence period. The inspection may include a request from the enforcing official, typically the Fire Chief, a compliance letter. This request could trigger an inspection that results in a compliance order. Since most pre-existing buildings do not comply with all provisions of the Life Safety Code, the property owner is likely to be confronted with substantial expense to comply and a retreating buyer. An informed buyer is unlikely to purchase a property prior to full compliance. This decision will have an immediate impact on property values.
Property owners should anticipate a Life Safety Code inspection and undertake a peremptory analysis of their property to determine what repairs are required for compliance. Buyers should include a condition in their purchase and sale agreement for Life Safety Code compliance. We have handled a number of Life Safety Code cases in the past few years and expect that number of case to increase dramatically as the decision will empower local officials to increase compliance efforts