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Kent Holland, Jr.
ConstructionRisk, LLC

Where a homeowner directed its roofing contractor to perform work in a manner that violated the building code, the contractor was nevertheless liable for a per se violation of the code. The homeowner’s waiver of the code requirements does not preclude the contractor’s liability for violation. In this case, the code permitted no more than two layers of roofing on the building. The trial court issued a jury instruction advising the jury that if they found the code violation was the result of the homeowner’s instruction, they need not assess damages against the contractor. The appellate court reversed and held it was an error to give that instruction and moreover, because the jury found that the contractor violated the code, judgment must be granted to the homeowner.   Downey v. Chutehall Construction Co., 88 Mass. App. Ct. 795 (2016).

It was sharply disputed at trial whether the homeowner represented to the contractor that there was only one layer of roofing at the time of the work and whether the homeowner refused to allow the contractor to strip existing layers from the roof before installing the new membrane that resulted in a total of three layers of roof material. This was only mentioned by the court and not discussed because it was apparently not deemed relevant to the outcome of the decision.

What happened at the trial level was that the motions judge denied cross motions for summary judgment and ruled that a jury could conclude that the contractor’s violation of the code was not knowing or intentional if they found he relied on statements from the homeowner that there was only one layer of roofing on the roof. At the trial itself, the trial judge denied a motion by the homeowners to exclude evidence of their alleged representations concerning the roof as well as instructions to the contractor not to strip the roof. The basis for their motion was an argument that a consumer’s oral waiver of a building code’s requirements cannot be a defense to liability.   The judge then instructed the jury, over objection by homeowner, that they could proceed to determine damages only if they found that the building code was violated and that the violation was not done at the insistence of the homeowners.

In analyzing what impact, if any, a client’s instruction to violate the code would have on the contractor’s obligation to comply with the code and liability for non-compliance, the appellate court stated that a statutory right may not be disclaimed if the waiver would “do violence to the public policy underlying the legislative enactment.” The purpose of the building code, according to the language of the statute, “is to insure public safety, health and welfare insofar as hey are affected by building construction, through structural strength, … and, in general, to secure safety to life and property from all hazards incident to the design, construction, reconstruction, alteration, repair, demolition, removal, use or occupancy of buildings, structures or premises.”

Based on this public policy, the court concluded that, “To permit a waiver by a homeowner of his or her right to compel a contractor to comply with the contractor’s obligations under the building code would permit, even encourage, contractors, and perhaps consumers. To waive provisions of the building code on an ad hoc basis, in the hope of saving money in the short-run a, but endangering future homeowners, first responders, and the public in general.”

In reviewing all the issues in this case, the court found that the “consumer’s oral waiver of a building code requirement cannot defeat the contractor’s liability for the violation….”

Risk Management Comment

The question of whether a contractor or design professional can be excused from code compliance by direction of its client is one that comes up more often than might be expected. It seems that clients may have a number of reasons (such as cost cutting) for not complying with all the details of the building code. As this decision makes clear, the professional contractor or designer that designs or constructs in violation of code requirements may find itself strictly liable for damages arising out of the work that violated the code even though it did what the client told it to do. So beware of code compliance.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 18, No. 5 (June 2016).

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