Condo owners sue over lack of fire exits

April 17, 2009
By

JOHN RUCH

SUMNER HILL—A Florida real estate developer is being sued by residents of a condo building at 96 Seaverns Ave., who say he stuck them with illegal renovations—including the removal of a rear staircase required as a back-up fire exit.

“The people sitting in front of you are victims,” said the residents’ attorney, Don Wiest, to the sympathetic Jamaica Plain Neighborhood Council Zoning Committee at its April 2 meeting. The residents are seeking zoning variances to legalize a partly finished basement and to build a new staircase as a fire exit—just two of many problems with the building, they say.

Wiest told the Gazette the case is one of the most “alarming” he has seen, and a warning for real estate buyers that permits and inspections don’t necessarily catch major safety issues. Wiest said the residents are currently relying on makeshift fire-escape devices, possibly including a “rope ladder.”

The three-unit condo building was renovated about four years ago by Jesús Martinez, who is represented by local attorney Peter Fenn. Fenn told the Gazette that Martinez acted “within his rights and within the law.”

Fenn said the lack of a secondary exit stairway is “clearly a serious issue. But whether it’s [Martinez’s] responsibility to build it or not is another issue.”

He said that Martinez, after learning of the problems, offered to build a new staircase for the residents without admitting legal liability, but, “They decided to sue him.”

“[The residents] all inspected it,” Fenn said of the building. “They had lawyers. They saw it and they bought it.”

“It’s unfortunate, and we hope it works out for the benefit of all involved.”

Wiest said all of the residents had their units examined by professional inspection companies prior to buy-ing. But, he said, many buyers don’t realize that such companies do not necessarily examine every aspect of the building.

“They don’t always look for building code safety issues,” Wiest said. “It’s good for buyers to know.”

Wiest said that it appears from his evidence-gathering that “the only permits that were pulled [for construc-tion on the building] were to do minor bathroom and kitchen renovating. The additional work may have been done under a permit that did not in any way remotely cover it.”

That would mean city inspectors had no reason to check the building for large-scale safety violations, he said.

A Gazette review of all building permits for 96 Seaverns, going back to the 1920s, available on the city’s Inspectional Services Department (ISD) web site found nothing explicitly covering the removal of stairs or the finishing of the basement. However, the online database is not necessarily complete. ISD spokesperson Lisa Timberlake said the building lacks the proper secondary exit and that ISD is not involved in the lawsuit.

The ISD file includes an Oct. 27, 2008 letter from Fenn to Harry McGonagle, ISD’s top building inspector. In the letter, Fenn says that McGonagle declared Martinez responsible for fixing “alleged violations” at the build-ing, and that Fenn disputes that. Fenn wrote that the units were sold “as-is.”

The residents’ lawsuit currently names only Martinez as a defendant. But, Wiest said, he is considering the possible legal liability of agents or brokers who sold the units. “We’re looking at that closely,” he said.

Wiest identified the main broker for his clients as Richard Asch of Keller Williams Realty, who is also named in the ISD file as Martinez’s designee to sign a permit application. Asch could not immediately be reached for comment by phone and e-mail.

Zoning Committee member Stephen Lussier, who is also a real estate agent, said he toured the building when it was for sale and noticed several code problems. “I brought it up early on” to the owner, Lussier said in com-ments that got Wiest’s attention.

Lussier called the building’s situation a “real drama-rama” and a “heads-up case” for other real estate buy-ers.

“We are being increasingly asked to fix illegal things by buyers,” said Zoning Committee member Marie Turley, warning of an apparent trend.

The residents are seeking zoning variances for excessive floor-to-lot-area ratio (FAR) and insufficient rear yard space. The variances would allow the building’s rear decks to be rebuilt to include a fire-exit stairway. The variances also would legalize the basement space—an extension of the first-floor unit—that previously in-creased the FAR above the zoning limit without getting a proper variance, Wiest said.

The condo owners boasted support from abutting residents and the Sumner Hill Association. The Zoning Com-mittee joined in, approving the variances, while warning that the finished basement space should never be turned into a separate apartment. The residents were asked to return voluntarily in six months to give the committee an update.

The owners requested and received a deferral on the variances at the April 7 hearing of the city’s zoning Board of Appeal. Wiest said that is because they are still examining whether fixing other code violations will require more zoning variances. The residents want to bundle any variance requests into a single hearing if possible, he said.

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