“They told me to do it.” “It’s not my fault.” Things we have all said at least once in our lives. Unfortunately, statements like this carry little-to-no weight in a court of law. As a contractor or construction party, you are held to a certain standard in the eyes of the law. This is especially true when the project being worked on is residential. Residential projects have different and sometimes stricter laws because the owner of the project is less savvy when it comes to the construction industry. Therefore, homeowners are afforded more protection. More burden falls upon the contractors and other construction parties to understand the correct and legal work that needs to be done. Recently, the Massachusetts Courts reminded contractors that despite instructions from a homeowner, you can still be held liable for building code violations.
Background
In 2005, Chutehall Construction Company was hired by the Downeys to install a new rubber roof system on the Downeys’ townhouse in Boston. By direction of the Downeys, Chutehall installed the new rubber membrane over the existing roof. Mr. Downey refused to let Chutehall strip the roof or do test cuts to determine the number of existing layers.
A few years later, the Downeys hired a HVAC contractor to install a rooftop heating, ventilation, and air conditioning unit. Unfortunately, when the contractor cut a hole into the roof, it discovered the underlying roofing system was wet and four layers of roofing existing. The applicable building code permits no more than two layers of roofing on a building. After hiring others to inspect the roof and submit an opinion, it was found that the roofing system had to be removed and replaced. In 2010, the Downeys filed a complaint against Chutehall for the work done back in 2005. After a decision was handed down against Chutehall, it appealed.
The Appellate Decision
In Downey v. Chutehall Construction Co., Ltd., 86 Mass. App. Ct. 660 (2014), the Appellate Court of Massachusetts affirmed lower courts decision finding Chutehall liable for damages. The Court held that an oral waiver of building code requirements by a homeowner did not bar Chutehall’s liability for violating said building code and the Consumer Protection Act, M.G.L. c. 93A. The real kicker is that by violating the Consumer Protection Act, Chutehall opened itself up to double and possible treble damages because the violation potentially threatened public safety.
Chutehall argued, correctly, that statutory rights to a remedy can be waived, and the Downeys certainly waived their statutory rights by demanding these actions from Chutehall. Unfortunately, the rights cannot be waived when the waiver would threaten public policy. This is pursuant to G.L. c. 142A, §2(9) which states
Section 2. (a) Every agreement to perform residential contracting services in an amount in excess of one thousand dollars shall be in writing and shall include the following documents and information:
(9) an enumeration of such other matters upon which the owner and the contractor may lawfully agree; provided, however, that no such agreement may waive any rights conveyed to the owner under the provisions of this chapter;
Under G.L. c. 142A, §17(10), no contractor or subcontractor may violate the building code of the State. The combination of these two provision makes it pretty clear that any violation, with or without evidence of waiver, will result in liability of the offending party. Therefore, Chutehall was found liable to the Downeys for the damage to the roof.
What to Learn
Chutehall’s difficult position is one not uncommon to the construction world. This situation is especially common among contractors working on residential projects. When in any service industry, the customer/client is always going to be the number one priority. Laws can get in the way of that, but there are ways to make the situation more tenable if issues like this do arise. One way would be to make sure that a walk away provision is in your contract with the homeowner. This provision would allow you to leave the project without any sort of breach of contract if the homeowner is trying to force you to execute tasks or projects that would violate building laws and codes. In any scenario, a violation should be avoided at all costs.
