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UNDERENFORCING THE HOUSING CODE

H. Laurence Ross

 


 

Housing codes are intended to be tools for resisting the forces of urban blight. These codes and corresponding code enforcement agencies are universal in American cities partly because they were made a prerequisite to the receipt of federal urban renewal grants, and received subsidies for enforcement activities, in the Housing and Development Act of 1965. The reason behind this requirement was probably that it made no sense to invest in new construction in the vicinity of decayed and decrepit older housing stock. However, more than thirty years after the law's enactment it is apparent that core areas of older cities are in serious decline despite the existence and enforcement of housing codes and the proximity of redevelopment. Indeed, it is possible to argue that housing code enforcement is one of the causes of urban blight.

This chapter is based on a study of housing code enforcement in three older industrial cities: Buffalo, Baltimore, and Boston (more completely described in Ross, 1996). Professor John Thomas, several student assistants, and I accompanied the majority of the more than 50 inspectors in each city in the course of at least one day's work, and interviewed them and the supervisory staff at length. We also had access to whatever quantitative data were collected by the departments, though this proved to be rudimentary. We did our own coding and analysis of about 1000 case files in Buffalo.

Our principal finding was that the codes are very much underenforced in all three cities. This is because the law is voluminous, vague, and ideal. The limited enforcement personnel apply the law with discretion accompanied by imperative informal pressures, including the acknowledgment that frequently the resources needed to comply with the code are simply not available. Code enforcement personnel also perceive that efforts toward strict enforcement are likely to lead to abandonment of cheap but deficient housing and to create yet further decay of low-income neighborhoods. This chapter suggests some implications for policy in devising and enforcing housing codes in the future.

The purpose and function of housing codes.

Housing codes are differentiated from the more familiar building codes in that they concern maintenance rather than construction of residences. The codes' purpose is to assure safe and healthy home environments for all urban residents. Each of the cities we studied had a department specifically charged with housing code enforcement. Officials were charged with inspecting properties and determining the existence of violations, notifying the property owners and demanding improvements, and eventually certifying attainment of compliance with the code. Owners of property that was not brought into compliance were subject to criminal prosecution.

This process assumes the existence of resources with which code compliance can be attained. Although subsidies for certain property owners are available in some cases, subsidies are not generally available and the system is based on the expectation that owners can reach compliance by redirecting assets under their control.

Problems of the law in action.

Housing codes, like much regulatory law, pose dilemmas for enforcement. They are voluminous, often vague, and are ideal in the sense of demanding more than can be provided by the regulated parties. The voluminous requirement of the codes is apparent in their physical bulk. Baltimore's code, for example, fills a booklet of more than 50 pages. Although some code requirements, such as minimum square footage for windows and floor space, can be annoyingly specific, many are vague and general. They may require, for example, "good repair," "safe condition," or "fitness for human habitation" (Baltimore Housing Code, Ch. VII, para. 702). Moreover, the requirements they contain can be considered to be ideal, i.e., desirable but beyond the capability of mass markets and the limitations of aging facilities constructed in accordance with obsolete building codes. Examples are found in such matters as numbers of electrical outlets and quality of plumbing. Decent housing as defined in the code turns out to be of middle-class quality. All city residents are guaranteed kitchens and private bathrooms in their units, with hot water of a minimum temperature, modern standards of lighting and ventilation, absence of cracks in the walls, quality paint, etc. No units, at however reasonable a rent, are exempted from these standards.

Such a body of law is incapable of literal application by a limited enforcement staff, and requires prioritization, yet lawmakers are loath to express this in statutes and management often fails to assume responsibility for setting priorities, leaving the matter in fact to the front line personnel. This has been reported in numerous studies of application of law, both civil and criminal (Black, 1971; Braithwaite, 1985; Hawkins, 1984; Hutter, 1988; Lynxwiler et al., 1983; Piliavin and Briar, 1964; Prottas, 1979). In all instances it is reported that the front line exercises discretion that is both necessary and formally unrecognized.

Influences on discretion.

By far the most influential forces impinging on the code enforcer's prioritization of the law come from complainants. These were most commonly tenants, in the case of interior or functional problems, and neighbors, in the case of exterior or cosmetic problems. Tenants, especially lower-income ones abetted in some instances by tenant unions and Legal Aid, drew attention to such problems as inadequate heat and hot water and infestations. Neighbors, especially upper-income ones sometimes abetted by neighborhood organizations, drew attention to problems like weeds and litter, peeling paint, and noxious odors. Complainants could be effective by bringing problems to the attention of mayors and city councilmen and thus to the departmental supervisors. Similarly effective were media, which could run stories that would attract the attention of politicians.

It is important that the outcomes of complaint handling quiet the complainants and satisfy the media. Because of personnel limitations, in the three cities studied virtually all enforcement efforts were undertaken in response to complaints, with no proactive activity whatsoever. With few exceptions, buildings with obvious code violations were routinely ignored as inspectors made their rounds, unless they were the subject of complaints.

Property owners also influenced the discretion of inspectors, for their cooperation was essential in obtaining code compliance. Inspectors were not capable on their own of cleaning up trash, painting, or installing conforming fire exit doors on nonconforming properties. The goal of code enforcement is compliance, not punishment of bad landlords. Although criminal prosecution is possible for violations, inspectors are aware that "a court case is one that has been lost . . ." "If they get to court, they stop working on the building." Inspectors reward property owners working toward compliance with forbearance, granting extensions of time to do work and accepting well-intentioned though less than perfect results.

Means of unenforcing the law.

As previously noted, a chief means of reducing the demands of enforcement is by attending primarily or only to complaints and ignoring even obvious code violations not complained of. In the cities studied, no proactive enforcement generated by departmental or inspectorial initiative was expected or experienced.

A second means of reducing enforcement demands was to extrude them. Assignments that proved to be outside an inspector's territory were routinely declined. (Sometimes they were found to be outside city limits and therefore beyond the authority of the departments.) Where possible, problems were redirected to other agencies, including fire departments, building departments, zoning inspectors, and the like. Tenant complaints were listed as without cause for action when the complainants, perhaps due to a climate of distrust in low-income neighborhoods, failed to answer their doors or declined admission to strangers including inspectors.

Violations were prioritized at the discretion of inspectors. The process is described below. Having decided what were important violations as compared with minor ("chicken-shit") violations, inspectors either overlooked the minor ones, as a kind of reward for fair dealing by property owners, or used these as bargaining chips to secure quicker and more thorough effort on the major ones.

Good-faith attempts at code compliance by property owners were also rewarded by extensions of time for compliance -- often verging on the infinite -- on the basis of "progress," and acceptance of less than complete work on the basis of "substantial compliance." It was possible to speak of "paintbrush progress" whereby token efforts were accepted as a basis of extensions, or "trash can progress" whereby easy actions such as picking up trash were accepted in lieu of work on more difficult and expensive problems on the same properties.

Prioritization of housing code violations.

As noted above, the existence of a complaint could justify ranking nearly any alleged violation as a matter of priority, warranting inspections and follow-ups. A complained-of condition would nearly always outrank a more severe problem that might be apparent on a nearby property encountered when responding to a complaint. Complaints were most effective when forwarded by politicians (City Hall) or the media.

Priority was also accorded to problems that were most visible. While complaints helped order attention to interior violations, visibility ordered attention to exterior ones. "If nothing is harmful and it looks decent, I don't care with the code says . . . If no one is being hurt, you are reduced to playing Big Brother." Visibility was not just a matter of objective appearance, but it depended considerably on the context. A problem like peeling paint that would be a matter of priority in a middle-class neighborhood might be ignored on a slum street where such conditions were commonplace. Conditions on heavily trafficked arteries received more attention than those on back streets.

In a manner that seems more legitimate, priority was given to matters judged most involved with health and safety. Exceptionally, Massachusetts law identified a list of about a dozen code provisions considered to be most important to health and safety, but comparable informal priorities were evident in the in the work of inspectors everywhere. Problems with heat and hot water were among these, as were also problems with sewerage. Provisions relating to fire protection were matters of priority because inspectors recognized that overlooking them could result in loss of their employment and even liability for someone's death: "[We] are primarily concerned that people can get out in the event of a fire. They don't care that much about flaking paint . . ." In addition, priority went to politically salient conditions; at the time of our study these were the presence of lead paint and asbestos.

In contrast, some code provisions are routinely overlooked, except when complained of. "I didn't see [the abandoned cars], did you? I think the law is so stupid I won't enforce it unless I get a complaint. You ought to be able to put your own car on your own property if you want to."

The negotiation of code compliance.

The existence both of violations and of compliance are matters of judgment. A violation is a condition that requires attention. A judgment of compliance means that the condition is acceptable, to the complainant, the property owner, and the inspector himself. Compliance does not mean perfection, but merely adequacy.

One important consideration that affects the judgment of adequacy is the apparent existence of resources to ameliorate a violation. The principal dilemma for inspection is that much nonconforming property is owned by persons of limited means, either as occupants or as small landlords with tenants incapable of paying rents that can support a great deal of maintenance expenditure. Given the usually accepted criterion of 30% of gross income as a standard of affordability of housing, families earning at the poverty level of around $12,000 per year can afford rents of only around $300 per month. This is most unlikely to suffice to pay the expenses of mortgages, insurance, and utilities, not to mention maintenance.

Inspectors frequently are willing to overlook violations in the homes of owner occupants. Complaints involving owner occupants are few, and the prevailing understanding is that these people may lack resources for compliance. Tenants, of course, are more likely to complain about functional inadequacies, but financial constraints are acknowledged in the provision of extensive time for owners to achieve compliance, and judging imperfect work as acceptable.

Regardless of financial assets, property owners are expected to deal in good faith, to keep their promises, and to merit trust: "I give extensions beyond my authority all the time to people I know will use them well and not throw it back in my lap. But if somebody lies to me I will burn them so bad that they sure enough won't forget it."

Code inspection and urban blight.

Enforcement aims to protect against blight by forcing the use of resources to maintain housing stock. Bad maintenance reduces the value of not only the unit in question but also of surrounding units and neighborhoods. Moreover, inadequate structures attract the most poverty-stricken and pathological of city residents, further reducing the value of adjacent structures and surrounding communities. To the extent that resources exist and can be forced into property maintenance, code enforcement can be expected to slow the decay of structures and neighborhoods.

However, in low-income neighborhoods where most violations exist, adequate resources often are lacking. Much of the housing stock in the cities studied was owned by low-income occupants who, as noted previously, were seldom required to bring their homes into a compliance they could not afford. Much of the balance was rented by low-income people to other low-income people. Examples abounded in the double-deckers of Buffalo and the triple-deckers of Boston, which were built (nearly a century ago) for working-class occupancy on the ground floor and tenancy "to pay the mortgage" on the upper floors. Where buildings were owned by professional investors, resources might have existed to bring selected units up to code, but often not the entire stock. For example, in Baltimore in 1994, the owner of more than 500 low-income rental units declared bankruptcy, and no evidence was found of improprieties in his financial management; rather, the income stream from the market simply did not suffice to maintain the properties.

The principal problem associated with demanding compliance with the housing code in low-income areas is the possibility of abandonment. This is especially likely in areas where the value of properties is less than the cost of demolition. Statistics suggest that abandonment is indeed a major problem in central cities. Between 1974 and 1987, the total number of units renting at less than $300 per month declined by 25 percent (Apgar et al., 1991). This was almost certainly the result of abandonments and demolitions, which were probably even more extensive but offset by the availability of still occupied but deteriorating properties obtaining reduced rents. At the time of our study Baltimore had 8000 abandoned properties, and Mills and Hamilton (1989) cite 30,000 in Philadelphia and 100,000 in New York.

Abandoned housing has far-reaching consequences. Of course, the abandoned unit is uninhabitable. Beyond this, its abandonment signals dire economic circumstances that reduce the demand for adjacent units. Abandonment is thus "contagious," infecting not only the immediate structures but also the entire neighborhood. In addition, it encumbers municipal budgets with the need to fund demolitions, uncompensated by any value of resulting vacant land.

Housing code inspectors realize that major demands for upgrading structures in the absence of resources are likely to encourage abandonment. Paradoxically, then, code enforcement may be a cause of urban blight rather than the remedy it was intended to be. Consider this extended quote from one inspector:

"Strict enforcement will hurt many tenants . . . The market demands low-cost housing, and forcing landlords too hard would squeeze out of the market this kind of housing. So we have to live with some violations . . . We're going to wind up with vacant, vandalized buildings if we push this type of owner. Granted, these places are not really habitable, but people have a roof over their heads for $40 a month. They will all be out if we push this thing because they cannot afford the increased rents that the owner will have to charge.

What's the point? How's that helping these people?"

In accord with this perception, inspectors apply the code in a way unanticipated in the formal law but consistent with minimizing potentially negative consequences of enforcement. To begin with, there is little enforcement against owner occupants, who are seldom the objects of complaint except for external conditions like weeds and litter.

Internal, functional, problems -- the kind of violations generally most expensive to remedy -- are usually assumed to reflect limited resources and are in fact tolerated. In contrast, absentee landlords may often be perceived as possessing divertable resources, and complaints from their tenants are apt to be processed more formally.

The code is least forcefully applied in low-income neighborhoods. In Baltimore, "repairs on Northern Parkway will require workmanlike painting; this will not be required on Dallas Street." In Buffalo, if a dilapidated house "were on Broadway. It would be different. It isn't in that bad shape. It isn't bringing down the area that much." In Boston's elegant Back Bay area, "you'll get a complaint and a woman will show you a few scraps of paper and call it rubbish [whereas] in Dorchester, around here, there's dead rats and dogs on the streets and nobody complains. They're different environments; the people have different expectations."

Property owners understood to have limited resources also receive consideration individually, provided they appear cooperative and trustworthy. "If a person is handicapped they are not expected to comply as quickly; old people also get extra time. Swados' Furniture Store has been having poor business lately, so I understand why he is waiting a long time to repair the roof, especially since the Swadoses have complied with all the other violations." The toleration runs throughout the enforcement system. In one case an elderly black couple arrived confused in Housing Court for a case involving a code violation in their home. The judge advised the prosecutor to defer prosecution. When asked for how long, the judge replied, "Until they die." Moreover, unaffordability of a mandated improvement has been recognized by several appelate courts as a legitimate defense against criminal prosecution for housing code violations (Gribetz and Grad. 1966).

Utility of housing code enforcement.

Code enforcement would seem most competent where it deals with isolated instances of deficiency in the context of a sound neighborhood and where resources for compliance would seem reasonably likely to become available. Problems in units in high-status rental properties would seem to require merely notifying the responsible parties. Concerning the Ritz-Carlton Hotel in Boston, "I would never write them up for major violations -- I wouldn't dare! These are world-famous hotels! Of course, I would let them know if anything needed repair, fixing, or cleanup, and they would be most prompt to fix up the violations." Likewise, well-off owner occupants can be forced to bring their properties into a condition that does not negatively affect adjacent properties. Where a healthy real estate market exists, problems can be resolved through selling a neglected property to a new owner, and enforcement can help bring pressure on reluctant owners to place their properties on the market..

In slum areas incapable of general improvements, enforcement may address the worst instances of code violation, such as inadequate sewer connections, insufficient heat in the winter, and structures in imminent danger of collapse. Enforcement in slum areas can help individuals, such as tenants who want to be put on priority lists for public housing or those who wish to avoid paying rent for substandard apartments. However, general conformity with the code cannot be achieved because of resource limitations. The danger pertaining to code enforcement in these areas is that by demanding expensive repairs it increases the motivation for owners to abandon their properties or withdraw them from the low-rent housing market. Therefore, enforcement tends to be minimal even with severe code violations.

Perhaps the greatest use for housing code enforcement is in marginal and declining neighborhoods where minimal resources may be conscripted from marginally well-off property owners. Here is where proactive enforcement may be capable of slowing the decline and filtering down of the neighborhood to poorer and more destructive occupants who will complete the cycle of decline.

Policy implications.

The previously noted competences of code inspection suggest that the present practice of responding to complaints is most appropriate in both the most and least prosperous and stable neighborhoods. It can identify the most urgent needs in each context and remedy them expeditiously. However, in the important case of declining and threatened neighborhoods, code enforcement beyond complaints is warranted. The departments should endeavor to provide proactive enforcement, whereby such neighborhoods are systematically visited and evidences of impending blight cited for financially competent owners. To force the incompetent to sell may be effective if there remains a reasonable private market for real estate in the neighborhood, unlike the case in slums where the possibilities of comfortable residence or profitable ownership are so remote that zealous enforcement is likely to result in abandonment of inhabited properties.

Furthermore, it appears that it would be wise to zone the housing code formally. Although this has been suggested in the past (cf. Downs, 1983), it has nowhere been adopted, perhaps because of the ideology that the code provides a minimum standard of habitability of which no citizen should be deprived. However, this study of housing code enforcement "in action" reveals that the codes are viewed by their enforcers as ideal, and zoning occurs in practice as a consequence of the discretion of front-line inspectors, rather than as a result of rational policy calculations of responsible officials. For example, a zone of less stringent enforcement might be created where obsolescent standards of plumbing and heating, and especially of cosmetic matters, might be tolerated. Such zoning could apply, for example, to neighborhoods where median incomes are no greater than the official poverty level. This might be capable of promising investors the possibility of at least a modest return in providing housing for low-income people. The promise could be made more convincing by adopting other suggested housing policies such as systematically reducing tax assessments in low-income neighborhoods and providing public subsidies for improvements in low-income housing units (cf. Downs, op. cit.).

Conclusion.

In sum, although code enforcement may claim some utility in maintaining basically healthy and wealthy neighborhoods and in alleviating egregious conditions in isolated individual units, it is not as presently organized competent to slow the decline of threatened neighborhoods because it responds only to complaints and lacks proactive programs of enforcement. Moreover, unless the code is enforced with great moderation, a uniform code in all parts of the urban area is capable of accelerating abandonment and decline of the housing stock available to poor people.

The housing code, if properly administered, can to some degree perform the functions for which it was created, but it will have major success only in the context of broad social programs that address the fundamental causes of decline in the cities. Perhaps the most important is a distribution of income that limits the ability of low-income residents to afford the maintenance demanded by the code. Although some enforcement agencies, notably the Boston Housing Court, have the ability to offer subsidies to help property owners comply with their demands, these are generally inadequate to render housing for masses of low-income people either profitable or even possible.

City governments also have resource problems to deal with. As pointed out by David Rusk (1993), the paradox of governmental poverty in a rich society is partly a consequence of a political system that separates the prosperous citizens (in suburbs) from the needy (in central cities) and renders income redistribution programs, including provision of basic services to all, extremely difficult.

Nor does housing code inspection address other sources of urban decline. Racism, for example, is responsible for an especially weak housing market for poor members of minority groups. Crime and drug abuse make many low-income neighborhoods unsafe and uninhabitable at any price; a common experience in our research was to visit sound, handsome, even historically significant, properties that languished unoccupied and promised to fall victim to vandalism and demolition because of the dangers linked to residing in their neighborhoods. Declining infrastructure -- potholed and filthy streets, backed-up sewers, inadequate parking, nonexistent public transportation, etc., render central city occupancy for decent citizens unenticing. One could also mention underperforming services such as police and schools as additional disincentives to reside in these neighborhoods. Moreover, residential decline reinforces commercial decline in a vicious circle whereby the traditional advantages of central city living in terms of access to work and recreation are undermined; at the time of the study, not one movie theater remained within the city limits of Buffalo, and the last downtown department stores had recently departed for the suburbs. While these conditions continue, it would seem unrealistic to expect housing code enforcement to produce much improvement in central city living conditions, especially for the poor.

References.

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