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Real estate agents, residents balk at Certificate of Occupancy rule

Hollywood, Fla., and West Seneca, N.Y.

They might be a thousand miles apart in geography and climate, but they have one unusual trait in common, according to area real estate agents: They're the only towns in the United States requiring a Certificate of Occupancy prior to a transfer of property.

Minutes after agents successfully arm-twisted the West Seneca Town Board into rescinding a controversial ordinance that -- for 58 days -- required the replacement of sewer lines between older homes and the street at sale, attention turned to the Certificate of Occupancy.

The certificate, town officials argue, is in the best interest of prospective buyers -- for both safety and information's sake. A $100 fee to the town gets the property certified by a town inspector who makes sure the home is not only habitable and safe but up to town code.

Real estate agents, some town residents and at least one Town Board member, John M. Rusinski, have reservations with the requirement, however. They see it an an unnecessary act of government intrusion.

Nearly 80 people packed West Seneca Town Hall on Monday evening for a meeting that included a public hearing on the aforementioned sewer requirement. Only two people spoke on that issue. Then, the board rescinded the regulation.

Agents' ire quickly turned toward the "C of O" -- as they dub the Certificate of Occupancy. Several argued that the town's law requiring it -- which has been on the books since 2008 but has only recently begun to be enforced -- is being selectively applied.

"It's not being done equally across the board," said Anna Marie Falkner, a Hunt agent. "It's unconstitutional."

Falkner said when the law is applied its criteria are undefined and inconsistent in enforcement. Sometimes inspectors check everything in a house, other times not, she said.

David G. Schultz, a Realty USA agent from West Seneca, called the town's requirement a "seventh layer" of inspection that is unnecessarily burdensome to property sales in town.

"I don't know what [the town] is looking for," he said.

At a property sale, Schultz argued, the owner of the home looks over the property, as does his agent, the prospective purchasers, their agent along with a home inspector and a bank appraiser.

"And four out of the six are licensed by New York State," Schultz said.

Even so, it doesn't mean the inspections are adequate, said John Gullo, West Seneca's code enforcement officer, who said he has found new homeowners unknowingly "buying violations" -- some, with dire results.

In one case, a new homeowner started a fire in a fireplace that had been abandoned by a previous owner. The flue, which was wooden, caught fire and spread to the house.

"We want to make sure it's safe," Gullo said. "It's for the safety of residents and protection for the people who are buying the houses."

Gullo also disputes the town is linked solely to Hollywood, Fla. He said numerous other local towns have similar requirements, but the ordinances are codified under different names.

Daniel Locche, director of public affairs for the Buffalo Niagara Association of Realtors, said while Gullo maintains it's "all about safety," there's more to it than that.

"Safety concerns are the chief concerns of the home inspector, and structural concerns are the key concerns of the financial institutions. West Seneca doesn't need a reputation for piling government on top of everything," Locche said.

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