Daniel Sonneborn | PretiFlaherty | February 5, 2016
The Massachusetts Appeals Court, in Downey, et al. v. Chutehall Construction Co., Ltd., 88 Mass. App. Ct. 795 (January 6, 2016), recently held that an oral waiver of compliance with the building code by a homeowner does not preclude the contractor’s liability for the violation, particularly where a violation carries potential public safety concerns.
In this matter, the contractor was hired to replace a roof and roof deck. The parties disputed whether the homeowners (1) represented to the contractor that there was only one layer of roofing at the time of the work; (2) refused to permit the contractor to do test cuts in the roof to determine the number of existing layers; and (3) specifically instructed the contractor to install a new rubber membrane over the existing roof. After installation of the roof was completed, the homeowners discovered four layers of roofing materials and evidence of leaking when installing HVAC equipment. A new contractor was hired to strip the roofing materials, put on a new roof, and reinstall the deck. A jury found that the contractor violated the building code, but awarded no damages, finding that the violation was a result of the homeowners’ directions.
After the case was appealed, the Appeals Court reasoned that permitting 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 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-term, but endangering future homeowners, first responders and the public in general. Thus, even if the homeowners orally waived the building code requirement, the Appeals Court held that the contractor was still liable for the violation, entered judgment in favor of the homeowners, and remanded the matter to determine damages.
This decision makes it clear that…