Homeowner Can't Instruct Contractor to Violate Code

The ruling by a Massachusetts court is clear: You have to follow the code, even if the homeowner instructs you not to.

By Ted Cushman

Can a homeowner sue you for violating the code—even if the homeowner instructed you to do it? In Massachusetts, at least, the answer is yes, according to a state court of appeals. Massachusetts consumer protection laws require contractors to follow the building code. And a homeowner can sue a contractor under that law even if it was the homeowner who specifically told the contractor not to follow the code.

The appeals court handed down the ruling this month in the case of Christopher Downey (and his wife Mairead Downey) versus Chutehall Construction Co., Ltd., a roofing firm. The case concerns the Downeys' roof in the Beacon Hill neighborhood of Boston. Attorney Stan Martin of Commonsense Construction Law reports on the case here (see: "Homeowner’s alleged waiver of building code requirement did not absolve contractor from liability for the same," by Stan Martin). "The Massachusetts Appeals Court has held that the home improvement contractor law, which states that a contractor’s failure to comply with the building code is a violation of the consumer protection statute, cannot be orally waived by the owner," Martin explains.

As described by the judges, the construction issues in the case aren't complicated. "The Downeys hired Chutehall in 2005 to replace the roof and a roof deck on their townhouse in the Beacon Hill section of Boston. It is undisputed that the building code permits no more than two layers of roofing on the building. The original proposal that Chutehall submitted to the Downeys, as well as the final bill, included a line item for stripping off the existing roof system. In fact, however, Chutehall did not strip the roof, but instead installed a new rubber membrane over the existing roof.... A few years after Chutehall put on the roof, the Downeys sought to install heating, ventilation, and air conditioning (HVAC) equipment. The HVAC contractor cut a hole through the roof and discovered four layers of roofing materials and evidence of leaking (that is, wet insulation). The Downeys then hired a new roofing contractor to strip the roofing materials, put on a new roof, and reinstall the deck. Thereafter, the Downeys filed this action against Chutehall seeking to recover the costs of replacing the roof and the deck."

There's argument over who decided to re-roof over too many layers of old roofing. The judges write, "Sharply disputed at trial was whether Christopher Downey represented to Chutehall that there was only one layer of roofing at the time of the work; refused to permit Chutehall to strip the existing layers from the roof; refused to permit Chutehall to do test cuts in the roof to determine the number of existing layers; and specifically instructed Chutehall to install a new rubber membrane over the existing roof."

But in the end, the judges say, it doesn't matter: Massachusetts General Law — specifically, the state's consumer protection statute — is clear on the point. The law doesn't allow code violations — not just to protect building and remodeling clients, but also to protect future owners or other users of the structure. "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," the court pointed out, "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, but endangering future homeowners, first responders, and the public in general."

So the Downeys win this time. That doesn't mean that they'll get any money, however. If the trial court concludes that the whole thing was the customer's idea, Attorney Stan Martin points out, it can still act on that belief. "The court commented in a footnote that 'the judge may properly consider the jury’s findings when considering damages' (which is to say, if the jury believed the contractor and not the homeowner as to this alleged directive not to strip the roof, the judge may conclude that the homeowner’s damages are minimal)."

This article was originally published by The Journal of Light Construction
on January 12, 2016.

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