Does Your Home Have Unpermitted Additions?

by Gema Smith 01/19/2020

Image by Sue Smith from Shutterstock

House owners frequently remodel, upgrade, or otherwise make changes in their homes for which they do not secure a permit. While some changes do not require permitting, others do. The challenge comes when you attempt to sell the home. You may run into a problem when a buyer makes an offer on such a property, and their inspector discovers unpermitted changes. Their mortgage lender may be unwilling to give them a loan until you remedy the permit issue.

Additionally, since building codes often change from year to year and certainly from decade to decade, and the property may have changed hands more than once before it came to you. Even if the upgrade occurred before you purchased it, you might be the one responsible for fixing it with your municipality.

What can you do? When you believe your home has unpermitted construction, learn as much as you can about it:

  • When did installation take place? Before you took ownership of the house? After? 

  • What is the construction? A pergola? A sunroom? That necessary second bathroom?

  • In the year or era of construction, was a permit required? Is there a permit in place of which you're not aware?

  • Can it be grandfathered?

What is “Grandfathering”?

The term “grandfather clause” refers to an exception to a code, restriction, or legal requirement. It allows anything already done legally “at the time” to continue even if a new limitation would not allow it. Regarding unpermitted home upgrades, if the construction was before the change in the code, check to see if the code requires retroactive compliance. In that case, exceptions typically pose a danger to anyone living in the home or on the property and need remediation. When code changes do not require retroactive compliance, knowing the date of the construction puts you in the clear.

Retroactive Permitting

When you discover retrofits, additions, upgrades, or renovations in your home, search city or county records for a permit. Ask for help to see if that type of work in the year(s) of its completion required one. If it needed a permit, and you do not find one in place, either request a retroactive authorization or plan to sell your home "as is" to a willing buyer. Municipalities often have methods in place to offer retroactive permits. Check to determine the total cost of the permitting process. In addition to the permit fee, you may have to pay fines, inspections, and other fees. Any modifications required because of the permitting process become your responsibility. When the total cost of obtaining retroactive permits and related fees and construction costs is higher than the return on your investment, consider the “as is” process.

Selling Your Home "As Is"

When you choose to sell your property "as is," you no longer need to disclose to the municipal building department that you may have unpermitted construction. Until you are sure you want to request a retroactive permit, do not disclose information when you communicate with building code offices that might trigger an inspection. 

In the selling process, however, fully disclose to your real estate agent all items you know about for certain. That is, tell them about additions or upgrades you installed while in ownership. Make sure a sale is not delayed or falls through because a lender requires a permit. Have an appropriate "as is" clause written into the sales contract. 

Confer with your real estate agent to determine if seeking a permit is in your best interested when selling with unpermitted additions.

About the Author
Author

Gema Smith

Gema S. Smith has been an influential pioneer in the luxury real estate industry for over 30 years. With a reputation for providing first-class service and garnering impeccable results for her clients, Gema’s accomplishments have earned her mentions in San Jose Magazine as well as two State of California Senate Certificates of Recognition. 

Unapologetically persistent, tenacious in her negotiation and passionate about developing genuine trust with her clients, Gema brings her best-in-class service and award-winning approach to The Agency, with a focus on the high-end market of Silicon Valley. Previously, Gema served as a Broker Associate with Intero Real Estate Services in San Jose, where she was a consistent top producer and recognized as a Top Listing and Sales agent for the company’s 15 corporate offices. Knowing that every buyer and seller has their own unique story to tell, Gema is proud to play a role in her clients’ ongoing narrative and represent their best interests in what is often the biggest transaction of their lives. 

Gema has been an active member of the real estate community since 1987, getting her start in the loan business before obtaining her real estate and broker’s licenses. In 2002, she opened a real estate brokerage and loan company which she ran successfully until 2008, when she chose to focus her efforts on real estate sales full-time. Gema is a long-time member of the Santa Clara County Association of Realtors (SCCAOR) and California Association of Realtors (CAR), as well as a Certified REO & SHORT SALE Specialist with The Five Star Institute. She is also a two-time Santa Clara County Chapter President of NHORA (National Hispanic Organization of Real Estate Associates) and currently sits on the NHORA National Board of Directors. 

A passionate philanthropist, Gema sits on the Board of Directors for the Jose Valdes Math Institute. Her commitment and dedication to the advancement of educational opportunities to underserved communities defines her character. In her spare time, Gema enjoys gourmet cooking, entertaining family and friends, wine tasting, reading, jogging and traveling.