Working on unpermitted work that should be permitted 7

[BR0]

In the area I work (California) there are legal requirements for contractors that work on construction that is unpermitted. There are civil penalties and suspension or revocation of their license if they work on these projects.

Does anyone know if there are similar rules for engineers in the Professional Engineers Act or elsewhere? I'm probably looking in the wrong places but I've exhausted my searching abilities for this.

This would mainly involve construction phase work, responding to RFIs, change orders and observations. Both myself and the company I work for won't work on projects like this, but it can get awkward as we don't know about it until the construction phase.

Thanks in advance.

 

[jerseyshore]

My argument is how is an engineer supposed to know what is written on the building permit? Do I have to file a public records request on every job to see if all of my work is listed on the permit?

Maybe they got a permit for taking one beam out, but they asked me to design two. I see the sticker in the window and the contractor says they have a permit. I never know that only beam #1 is on the permit and not beam #2. Doesn't matter if they have a permit or not because if the permit doesn't cover some of my work there's hardly a difference. Beam #1 is inspected and approved, but falls down: I'm getting sued. Beam #2 is not inspected and falls down: I'm getting sued.

 

[Greenalleycat]

Quite possibly things work differently under your jurisdiction so we may not be talking in line with each other here.

For us, we would submit a set of plans and they would be issued as a set stamped by the Council. That's how we know what is or is not approved. legally the builder has to keep a set of stamped drawings on site during the works so they should be able to produce them to you during your inspection

 

[jerseyshore]

That is exactly the same here, but having the building code stamped plans on site is hit or miss. Plus I've never heard or seen any design professional request that set during a site visit.

Around here residential work is much more likely to be un-permitted than commercial, but I'm sure that varies place to place. NJ is a unique place where every 2 miles is a different town with a separate building department so those town officials drive around all day and spot out unpermitted work like hawks. They live for that.

I find most common that structural work isn't unpermitted totally, but that the work gets started as soon as the paperwork is handed in. So it will be permitted, but they get a head start. That is super common and I guess falls into a bit of a grey area of the original topic.

 

[Greenalleycat]

Definitely a grey area as who carries the risk if the work isn't actually compliant and gets rejected? Or if the project gets picked up on by the local council.

It seems to me that the law is pretty clear in your area, same as ours, but people choose to operate in the murky areas of the law (or, just clear cut not legal but maybe not enforced). As a practitioner you can choose to take that risk if you want, but it's worth weighing up the risks. For me, not a risk I like to take.

 

[jerseyshore]

You're saying it's a risk just because of the ethical sense or because no building official has signed off on the work/ inspected the construction?

If something goes wrong, regardless of permit or no permit, it's coming back to you.

 

[Greenalleycat]

Because of the lack of signoff from council.
From a purely moralistic point of you, I don't consider that a Council permit is the arbiter of the ideal model for delivering building work - it's just the system we have
However, the ethical obligation is something that will - at least here - make it easier for them to go after you and also for EngineeringNZ to launch an inquiry into you.
This is likely to result in additional punishment (fines and others) than you would have received in the original case of a (consented) mistake happening
Also, Council can be dragged in as a defendant if they have stamped the drawings, so that will help you not be on the hook for as much liability for a mistake

However, my biggest concern would be that your insurance almost certainly won't cover you for being involved in unconsented work
Our work's excess if $30k - a shit time, but a lot better than potentially being on the hook for $100k+ (or millions)

 

[JStephen]

This'd be a good question for the continuing education/ ethics webinars.
Not to disagree with all the above, but I'll point out that if the work was originally unpermitted, it may be necessary to have PEs involved in order to ethically rectify the situation, too. So it may depend more on the details than it appears.

 

[jerseyshore]

No I agree that if you know your work is unpermitted and you are "aiding and abetting" a contractor/ owner that can come down much harder on you. I think as structural engineers we are lucky that we rarely have to deal with the building departments directly so most time we wouldn't even know if our work was submitted for permit or not. I know I'm not going out of my way to dive into the permit status of a project, but I agree with OP that it can be tricky when construction admin phase is happening and you find the work is not sanctioned.

Anyone that does industrial work knows how those guys push the no-permit exception to the extreme and then some. Before you know it you're designing a giant wing of a building that they claim doesn't need a permit because it counts as maintenance wink wink or some BS.

 

[SwinnyGG]

My argument is how is an engineer supposed to know what is written on the building permit? Do I have to file a public records request on every job to see if all of my work is listed on the permit?

I don't think anyone is saying that..

What we are saying (at least... what I'm saying), however, is that if you become aware at some point that permit-required work is being conducted without a permit, you have an obligation not to sit on your hands.

I work in multiple jurisdictions, but in most of them the engineer knows whether or not their stamped drawings have been approved for permitting, because the engineer is responsible for submitting them to the city/county and obtaining their approval, and their signature is required on the permit application(s). This is an AHJ requirement, not a requirement of our contracts. As the contractor under most of these AHJs, I'm simply not allowed to submit drawings for approval, period. In some jurisdictions they won't even allow me to have access to the portal for drawing submission and review to monitor status/progress.

This can and does vary widely between jurisdictions, obviously. In the jurisdictions where the engineer is not part of the permitting process, I would not expect the engineer to monitor the status of our permit applications; but if we perform unpermitted work and the engineer somehow becomes aware, I would expect fire to rain down.

 

[phamENG]

Around here, failing to post the permit or failing to have having approved drawings on site is an immediate inspection failure. The building permit also includes a description of the work to be done. So it's pretty easy to tell if they're flying by night or not.

SwinnyGG - that's interesting. Here, the AE doesn't typically submit. Some will to get a jump start, but (in my honest and clearly humble opinion) an AE would be an absolute fool to sign for the permit. It includes all sorts of liability for job site safety and compliance. No thanks. Half the time I don't even know that the job has been awarded to a contractor much less that they started building it 3 months ago. I have no interest in taking responsibility for whether or not the contractor installed their E&S fence properly or that they're working from heights without fall arrest and PPE. As a mechanical maybe you're talking about trade permits rather than the overall building permit? Not sure. But I would never sign for the permit and I tell my clients to run from GCs that try to get them to pull the permit themselves - that's all on the GC.

EDIT: keep in mind, these thoughts/opinions are based on local ordinances and requirements. In a place that requires the AE to submit and pull the permit, that language probably isn't present and the responsibility for the site is placed on the contractor through other means. If nothing else, use it as a reminder that just because Anytown, IA does it one way, Someville, MA may be different.

 

[jerseyshore]

I am in agreement with everyone else here, I guess I got too carried away thinking people are going out of their way to investigate the permit status. Our liability insurance is high enough as is as structural engineers, we don't need sketchy owners/ GC's to increase those rates any further.

It is interesting how much these things vary from place to place. Unless it's my house I want to be nowhere near the permit process for any of my projects. I'll get you the signed and sealed drawings/ letters, but that's enough for me unless I have to chat with an inspector to smooth things over for a client. NYC jobs require a bit more paperwork usually, but that's standard stuff. I can understand mechanical engineers signing the M/E/P/HVAC subcode permits, but I've never heard of a structural engineer signing the building permit.

 

[phamENG]

One thing that I do (though it has yet to be and hopefully will never be tested in court) - my design contracts stipulate that if the work to be done requires a permit, then they will get one. It also requires that work be done by a licensed contractor. DIY job and/or no permit? You release me from liability.

It seems to me that the standard of care is based on showing construction in drawings that a licensed contractor should be able to understand. If this is the first time you've framed a house, I don't expect you to understand my drawings. My scope of work did not include a class on reading drawings or on how to frame a house.

 

[ryaneng]

DIY job and/or no permit? You release me from liability.

From my limited knowledge of law, I think these types of clauses only really significantly help you if you attempt to enforce them throughout the process. If you have that clause in there but then have no problem interacting with a DIY builder and providing site visits and construction feedback then it's clear you really don't have a problem dealing with a DIY builder.

That is not to say that they would not be more culpable then a licensed contractor if they are not completing their job to the standard of care of a professional builder, I just don't think it removes your liability entirely.

 

[SwinnyGG]

Around here, failing to post the permit or failing to have having approved drawings on site is an immediate inspection failure. The building permit also includes a description of the work to be done. So it's pretty easy to tell if they're flying by night or not.

This is the same in every jurisdiction in which I've worked.

but (in my honest and clearly humble opinion) an AE would be an absolute fool to sign for the permit. It includes all sorts of liability for job site safety and compliance.

When I say the engineer signs the permit app - I should be more clear. In those jurisdictions the engineer is NOT the permit holder. As the GC, I am the holder of the permit and am responsible for the entire construction process from permit application through issuance of CO. Under those AHJs, the engineer also signs the permit app. Their signature page contains a mile of legalese indemnifying the engineer from any responsibility outside of the design scope, and in summary basically says 'the undersigned engineer acknowledges that the drawings they stamped were in fact specifically designed for the site to which this permit applies, and the contractor is not using drawings from a different design effort to perform work under this permit'.

I've always suspected this requirement is a relic of some AHJ having problems with rubber stamped designs being used across multiple projects without the proper amount of re-evaluation for each new site. Even though we work fully above board and so do all of the engineers we partner with, we still have to check the box to pull our permits in these areas.

In these same jurisdictions the engineer also has to sign off prior to the issuance of TCO or CO, to certify that to the best of their knowledge the work was installed in compliance with the approved drawings. On big jobs this adds a lot of cost since performing the engineering for a project without any construction supervision or inspection scope is not an option.

As a mechanical maybe you're talking about trade permits rather than the overall building permit? Not sure. But I would never sign for the permit and I tell my clients to run from GCs that try to get them to pull the permit themselves - that's all on the GC.

My 'engineer type' tag is also deceiving.. I work for a large commercial GC, but this is my second career. I was a practicing licensed engineer for ~15 years prior to making a career change and going to the construction side about 4 years ago. You could say I have a foot in both camps.

 

[StrucPatholgst]

Pretty sure in NJ there's a $5,000 board fine if an engineer gets caught knowingly supporting unpermitted work. I recall reading a board action notice along those lines about 20 years ago. I've backed out of projects in the past where an owner refuses to get the permits. I have a letter template stating to the effect "I'm sorry but we can no longer be your engineer if you're not going to get permits for this work." I locked horns with a guy about 5 years ago over this. He asked me to come back out and help him with a change to the plan. I didn't see a sticker, so when I got back to the office I called him and asked him about permits. "I refuse to get permits." Told him sorry, I can't be a part of this anymore. He threw a fit and said he was going to file a complaint, and I told him he could start with the township construction code official, and then call the state division of consumer affairs. I even emailed him the contact numbers.

 

[jerseyshore]

OP is dead on about the challenge that these things usually come to light once construction has already started. It's like, you asked for signed & sealed sets, what the hell are you doing with them if not submitting to the town for permit. Luckily I haven't had to deal with that directly, but a lot of good responses in this thread for when it inevitably comes up.

 

[BR0]

I appreciate all the responses as well. It is interesting how jurisdictions do this differently.

 

[amigoprojects]

whatever step is taken should be legal and verified before you act on it.

 

[JoshPlumSE]

This would mainly involve construction phase work, responding to RFIs, change orders and observations. Both myself and the company I work for won't work on projects like this, but it can get awkward as we don't know about it until the construction phase.

I worked on a pretty significant industrial project that was unpermitted. I was the EOR, but I never felt like it was a problem. The owner had a very good reason for not permitting it (it was a fire-rebuild and the city planning department was on strike!)

 

[JoshPlumSE]

This would mainly involve construction phase work, responding to RFIs, change orders and observations. Both myself and the company I work for won't work on projects like this, but it can get awkward as we don't know about it until the construction phase.

Interesting. I have done engineering work in another state where I wasn't licensed. I sent the calculations and drawings to the owner and made it clear that it was up to them to get the project permitted..... meaning that they would have to find a more local engineer to seal the drawings. I didn't feel like I was going out on a limb at all. But, that's because I knew the construction manager was in contact with the building department throughout the process.

I also worked on an industrial project (in CA) where I knew that we weren't going to apply for a permit. The owner had a good reason for not applying for a permit. This was an emergency post-fire re-build project and the city / building department was on strike. The owner had a natural gas flare that was something like 30 to 60 feet tall. The flame was so huge that if you drove within a mile of the site at night, you would swear it was day time.

Again, I didn't feel like I was risking anything at all. The client had really good safety (and financial) motivations for the emergency re-build. You could argue that the company's liability would have been much worse if they did NOT take swift action. Plus, we went through nearly the same process that we would with a normal design. The only difference was with the RFI's. I had to issue a clarifying sketch or two. I literally had the construction manager (with the welding team waiting outside) standing over my shoulder waiting for me to finish my sketches so they could get to work.