Code Administration Explained
Overview of Code Administration
At its essence, code administration is the rules or statutes that govern how a piece of property may be used. When a property is subdivided and a number of lots will make up a new community, whether it’s a single-family home subdivision, townhome development, or multifamily (i.e., condominiums) project, the rules need to be created for those lands to regulate where certain improvements can be made, to what extent they may be made, and what is required to accomplish them. These deeds, covenants, or restrictions may be recorded by the developer with the county recorder, and upon recordation they become enforceable on the land. Any person purporting to own an interest in the recorded land must abide by these rules. The recorded code administration is binding on all future owners of property within the community , and is enforceable both against the property and upon all owners within the community.
Without any code administration, title to lands may be perfected upon the recordation of the deed. However, code administration allows for the declaration of easements, set-back lines, building lines, landscaping, and architectural review. It even allows for the creation of an entity to manage the community (e.g., a homeowners association), and the creation of assessments to maintain amenities and common areas within the community. As more and more communities are being developed, it is critical for the developer to understand the legal aspects of code administration, so that the records created to govern these communities provide enforceable, enforceable, achievable, and uniformly applicable requirements. Properly drafted code administration will help maintain property values and minimize property-owner disputes.
Legal Regulations and Compliance
Code administration is subject to a variety of regulatory frameworks. Code administration by a regional planning agency is subject to the regulatory framework that applies to regional planning agencies, which is provided in the California Government Code. Section 65000 et seq. provides the general rules that apply to all regional planning agencies. Specific rules governing regional planning agencies appear throughout the Government Code, particularly in the following Titles: 5: Local Agency Formation; 6: County; 7: Relocations; 8: Intergovernmental Relations; 9: Records; 10: Elections; 10.5: State and Local Governmental Organization; 11: County Water Districts; 11.1: Local Agency Formation Commissions; 11.2: County Education Law.
Regional Planning Agencies are considered state level land use decision-makers for the purposes of the California Environmental Quality Act (CEQA) as explained in Cal. Code Regs., tit. 14, § 15211. The Office of Planning and Research in the Governor’s office provides guidance on CEQA, including a Publication on "CEQA and Greenhouse Gases." Also, the CEQA Guidelines are found in 14 Cal. Code Regs. § 15000 et seq.
Compliance with the law is enforced by the Office of Planning and Research in the Governor’s Office and by various local, state and federal agencies. In order to assist in ensuring that local and state agencies comply with applicable laws, the State Controller has established the Fiscal Analysis Unit. The Physical Analysis Section of the Governor’s Office of Planning and Research monitors actions by California counties, cities and other governmental units, plans and policies that may have a statewide impact.
Intellectual Properties
It is important to recognize that the underlying software behind each code whether it is national, state, or local may overlap with various copyright, patent, or trademark issues. As a result, all involved organizations should be aware of the intellectual property implications of the code and when developing the code make sure to comply with applicable intellectual property laws and policies. Proper licensing agreements may need to be used rather than direct ownership by the code developer and additional steps may be needed to ensure appropriate permissions are received from the software developer before the code’s launch.
Copyright law protects the expression of ideas and/or the selection and arrangement of content. If the code is not completely original, but simply a compilation of existing content, it is possible that the code may lack the necessary creativity and originality and the copyright may not be protectable. If, however, the code includes new and original compilation or creative content it is possible that the code and/or any related software can be protected under copyright law. When copyrights are obtained, the protection exists upon creation for the lifetime of the creator or 70 years after the creator’s death. Copyright protection is also generally thought to exist worldwide and a decision by Congress could preclude copyright protection by treaty, but would not limit the protection already in place.
Patents protect new inventions that function in a particular way application and/or a new process. Patents can protect an innovation as long as the patent application is filed within one year of public use or disclosure, otherwise the patent could be barred. Once the patent application is filed and approved, patents can last the life of the inventor plus 20 years and also have international scope.
The words, names, symbols, logos and devices associated with a given code can also be protected under trademark law. Trademarks are generally associated with the commercial sale of a product or service. One aspect of trademark rules is that a mark cannot confuse consumers as to the origin of a product or service. The difference between copyright and trademark infringement is that copyright infringement is assessed under an "substantial similarity" test while trademark infringement is assessed on based on a likelihood of confusion.
In addition to the possibility that portions of the code could be subject to copyright or patent protections, some programming languages may be open source. For example, Ruby on Rails (which is the basis of the International Code Council’s new platform) is open source, meaning that it is governed and maintained by a group of developers. As a result, the group has specific guidelines for maintaining and contributing to the site. Open source provides another layering of structure and control for volunteers contributing to the code.
Liability Issues
In most jurisdictions, the legal requirements for how building code administration is performed have evolved over the years. What was once a method of record keeping has become increasingly more regulated in an attempt to ensure safe buildings are constructed. Because of the seriousness of what can go wrong if a building is not safely constructed, this has led to the evolution of liabilities for code administrators. In short, if building code will be administered, there are clear liabilities where the code administrator could be held accountable for issues of non-compliance. This is not to say that if a permit is issued for a building that it will automatically be faulted or have penalties that later cease to exist. It means that if a builder or owner can prove that a building that was permitted to be built within the jurisdiction was unsafe, then there is liability that gets applied to the code administrator. If a code administrator fails to meet the standard of care or adequate public safety application that is required by the law, they can be found liable for the results of those failures. In some situations, if a court finds that the code administrator had a gross departure from an applicable standard of care, he/she may have to pay for the damages the developers and builders incurred as a result of the standard of care negligence.
Privacy and Data Security
The proliferation of personal data driven by the digital economy means that codes have a role to play in how to collect, use and share personal data in line with good practice and legal requirements.
As we move further into the digital age, there is more and more concern about how companies treat personal data. In the EU, data privacy and protection is going to become even more important in 2018 when the General Data Protection Regulation becomes law.
Of course, the use and regulation of personal data can vary quite a lot depending on the purpose for which the organisation in question is using it, its type, structure and location.
Many codes have adopted the Data Protection Principles (as they are sometimes referred to), which set out the rules for fair and lawful use of personal data. The Principles were originally drafted in 1995 so hopefully by now with all the publicity surrounding the GDPR and its personal data-centric rules, the Principles will be considered as best practice.
The GDPR, which does not just apply in the EU/EEA but also to any company offering goods or services to individuals in the EU/EEA , has brought about a number of changes, including:
With regard to the codes themselves, it will be interesting to see whether there will be consistency between these Principles, the GDPR, and the ePrivacy Regulations.
Manufacturer codes may include more detailed rules around privacy. For example, in advance of the rollout of autonomous vehicles in the US, the Alliance of Automobile Manufacturers (The Alliance) released privacy principles for Connected Cars, stating that companies should only gather, use and share data from connected cars with "the informed consent of drivers" and drivers should be allowed to withdraw consent at any time. In addition, the data should be collected anonymously (anonymising data cannot be traced back to the driver) and drivers should be clearly informed about the uses of their data. More needs to be done to make this information clearer to the consumer (for example, it is often contained in small print in privacy policies), and it remains to be seen whether Privacy Codes will address these issues and include such principles.
Litigation and Legal Disputes
The multifaceted conduct of code administration is often a cause for legal disputes or challenges. This sub-section will explore some common dispute resolution mechanisms such as adjudication, arbitration and court action.
Adjudication
As referenced in Principle 8 (Compliance, Monitoring and Enforcement), Building Control Officers represent the statutory authority under the Building Act 2004 to ensure compliance with the regulations. In addition to this duty, they also have a regulatory power of issuing Notices to rectify building work in breach of the Act. The recipient of such a Notice may apply to the Minister (the appeal body) for an adjudication on the issue of whether there exists a breach of compliance with the Act or Regulations. To assist the Minister in such adjudication, the Building Advisory Council has established a standard set of principles that will be applied and interpreted by adjudicators in principle reviews. The adjudication process is part of the established regime for dispute resolution under the Building Act 2004. As discussed in the guidance note released by the Ministry of Business, Innovation and Employment on 21 March 2013, an overview of the adjudication process is as follows: An adjudicator must deliberately reach a decision in a consistent and predictable manner. An adjudicator must not act without a fair hearing, but may resolve the matter by a summary determination. Where the adjudicator is unable to make a summary determination, they must record the parties’ consent to the adjudication being conducted on the basis of the written submissions. If the adjudicator does not have the consent of the parties, they must: The statement of facts and submissions would include the details of the allegation, the specifics of the alleged non-compliance and any other matters that the adjudicator might reasonably need to determine that the alleged non-compliance exists or does not exist. The adjudicator must inform the parties when the matter is to be heard, give the parties an opportunity to make further submissions and notify the party against whom the order is directed of the decision and the grounds for that decision. If more than one issue is involved, the adjudicator must deal with each issue separately, and where necessary, set out the reasoning.
Arbitration
Arbitration refers to two or more parties submitting voluntarily to an independent and impartial party to settle the dispute. The independence and impartiality of the arbitrator is ensured by their selection by the parties – the arguments for and against the appointment of an arbitrator are similar to those in respect of a mediator. The arbitrator must be an efficient, respected specialist within the field who applies appropriate legal requirements in an impartial manner. The decision of the arbitrator is final and binding (unless a party can show that the agreement to arbitration was voidable in which case a Court may set aside the award). Arbitration is more cost-effective and timely than going to court. Arbitration may be used in cases of minor or intermediate legal issues, where avoidance of legal precedent or public exposure of confidential evidence is of concern. The arbitration process is also formal and can involve lawyers, witnesses, presentation of evidence and cross-examination, although parties may choose to limit the scope of the procedure. Proceedings are typically held in private with only the parties permitted to attend. Arbitrators may issue an interim decision on a claim, and the parties must follow the interim order until it is confirmed by the arbitrator, set aside by a Court or revoked by agreement of both parties.
Civil Action
In some situations, it is necessary for a party to bring a civil action against another party, with respect to the subject matter of the code administration. One example might be where a development is situated adjacent to a property, and traditional methods of mitigation are not possible without substantial loss of amenity of the property. It may be necessary to pursue the neighbouring party for injurious affection. Obstruction of a code administrator exercising their functions, under the Building Act 2010, may also be subject to challenge in the courts.
Trends and Legislative Changes
In terms of future trends, code administration is poised for several changes in the coming years. Technological advancements bring the promise of more efficient, streamlined administrative processes that could reduce the administrative burden on both municipalities and building owners. For example, the continued development of cloud-based permitting systems, automatic complaint response systems, tracking software, and overall data management will all contribute to a seamless administrative experience in the future.
From a legal perspective, we are most interested in the international landscape. In the last ten years or so, we have seen an increased push (especially by the Europeans) to adopt loftier international standards in an attempt to harmonize national rules. While Canada is not an EU member , there is a push to adopt the EU standard and become the regulatory partner for many businesses seeking certification to European standards in North America. Recent updates to the ISO standards are an example. When Canada adopts ISO’s new certification standards, and such standards are elevated to legislation, we will see an increased level of detail applied to code administration. In addition, as more codes and standards are passed at the international level, it will continue to increase the level of public scrutiny applied to code administration. While this scrutiny is desirable – it means a higher standard for all – it is also a burden on building officials to meet those standards.