By: Kenney & Sams, P.C.

The Underlying Lawsuit

In Downey, et al. v. Chutehall Construction Co., Ltd., the Massachusetts Appeals Court recently held that a contractor cannot evade M.G.L. c. 93A liability for a building code violation, even if the homeowner orders the non-compliant work to be performed. Consistent with the Court’s prior interpretations of the Massachusetts Home Improvement Contractor Statute, the decision is pro homeowner and places the burden on contractors to comply fully with the building code.

In Downey, the plaintiffs engaged a contractor to replace the roof and roof deck of their Beacon Hill townhouse. The contractor’s proposal called for stripping off the existing roof, but ultimately the contractor merely installed a new rubber membrane over the existing roof. The building code permits “no more than two layers of roofing” on a building.

The plaintiff-owners sued the defendant contractor for the cost of replacing the roof and asserted M.G.L. c. 93A claims for violations of the Massachusetts Building Code. During the trial, it was disputed whether the owner told the contractor that there was only one layer of roofing; whether the owner refused to permit the contractor to strip the existing layers from the roof; whether the homeowner refused to permit the contractor to do test cuts in the roof to determine the number of existing layers; and whether the owner specifically instructed contractor to install the new rubber membrane over the existing roof.

At the trial’s conclusion, the trial judge instructed the jury that it may consider the owner’s waiver as a defense to liability for the building code violation. In response to the judge’s instructions, the jury found that the installation of the new roof over three pre-existing layers violated the building code, but that the violation was the result of directions given by the owners. Accordingly, the contractor was liable in light of the owner’s waiver.

Appeals Court Reversal

The issue on appeal was whether the trial judge erred by instructing the jury that the contractor could assert as a defense that a building code violation did not occur because the homeowners told the contractor to perform the work in a particular way.

The Appeals Court stated that “a statutory right or remedy may be waived when the waiver would not frustrate the public policies of the statute . . . A statutory right may not be disclaimed if the waiver could do ‘violence to the public policy underlying the legislative enactment.’ “

The Court reasoned that the Home Improvement Contractors Statute specifically provides that no “such agreement may waive any rights conveyed to the owner under the provisions of this chapter,” and that the building code is meant to “ensure public safety health and welfare.” To permit a homeowner’s waiver of his or her right to compel a contractor to comply with the contractor’s building code obligations, the Court opined, would encourage contractors, and perhaps consumers, to waive provisions of the building code to save money in the short run, “but endanger[] future homeowners, first responders, and the public in general.”

The Appeals Court reversed the judgment for the contractor and entered judgment for the owners on their M.G.L. c. 93A claims. The matter was remitted for further proceedings concerning damages.

Practical Considerations for Contractors

In short, if a contractor is asked to follow a homeowner’s instructions and violate the building code, and even if the homeowner waives any claims against the contractor, the contractor cannot risk violating the building code. If an owner continues to insist that its contractor commit a building code violation, the unfortunate but likely best option is to walk away from the job.

Even though it is not specifically addressed by the Appeals Court, the decision suggests that a written waiver still would not make an owner’s waiver enforceable given that it would complicate safety related sections of the building code. The decision also implies that contractors have a duty to investigate the property rather than simply relying on the homeowners assurances. To that end, contractors should insist in writing that the homeowner will permit all necessary inspections to confirm building code compliance.

On the bright side, this decision supports responsible contractors and gives them added leverage in persuading homeowners to perform a project by the book.