When the Customer Is Not Always Right – Contractor’s Liability When Homeowner Insists on Ignoring Building Codes

The motto, “The customer is always right,” was popularized by innovators in the retail industry in the early 20th Century. However, the slogan is rarely used in the construction industry — and for good reason. The customer’s desires and expectations when it comes to building or renovating their home are often unrealistic or untenable. It is usually after construction begins when contractors are asked to deviate from their plans due to the customer’s financial restraints or their ever changing tastes.

In Downey, et al. v. Chutehall Construction Co., Ltd., the general contractor (“Chutehall”) had previously submitted a bid proposal to the homeowner (“Downey”) which included a line item for stripping off the existing roofing system and replacing it with a new rubber membrane roof. Perhaps to avoid escalating costs, the homeowner allegedly told Chutehall to put the new roofing system on top of the existing roof. It was also alleged that Downey represented that only one layer of roofing existed.

According to 780 Code Mass. Regs. § 1512.3 (1997), “[I]t is undisputed that the building code permits no more than two layers of roofing on the building.” Not only did Chutehall allege that Downey represented that there was only one layer of roofing, but it was also alleged that Downey refused to permit the general contractor to perform test cuts to confirm the number of existing layers. Based on Downey’s representations and at his insistence, Chutehall proceeded with installing the membrane system over the existing roof without ever assessing the number of layers underneath.

Unfortunately, the roof actually had three layers of roofing and ultimately failed. Downey brought an action against Chutehall claiming that they were negligent in the work performed on the roof. Downey claimed that Chutehall violated M.G.L. c. 142A, § 17 when Chutehall installed the new roofing system over the existing three (3) layers of roof. If Downey could demonstrate that Chutehall was in violation of M.G.L. c. 142A, § 17, he could seek remedies under G.L. c. 93A, the Consumer Protection Statute. A party bringing a claim under G.L. c. 93A may seek attorney’s fees and costs in addition to treble damages if they can prove that the other party’s conduct was willful.

Chutehall argued that Downey had waived the building code requirement when he insisted on the installation of the new roofing system without stripping the old roof. The trial judge sided with Chutehall to the extent that the jury was instructed that it can assess damages only if: 1) the building code was violated; and 2) the violation was not done at the insistence of the Downeys. The jury found in favor of Chutehall.

The Downeys filed an appeal which posed the following question: Can a consumer’s oral waiver of a building code requirement provide a defense to the general contractor in a claim brought under M.G.L. c. 93A and M.G.L. c. 142A, § 17? No, according to the Appeals Court. Given the circumstances outlined above, the Appeals Court found that “where there are possible consequences for the safety of the homeowner and others, a consumer’s oral waiver of a building code requirement cannot defeat the contractor’s liability for the violation under M.G.L. c. 93A and M.G.L. c. 142A, § 17.” [emphasis added]

The Appeals Court was clear that its ruling pertained only to the set of facts that were a part of the record at trial and did not provide any guidance with respect to future situations when a consumer may waive a building code requirement. Therefore, it may be possible to argue that a written waiver of a building code that does not directly compromise the safety of others can withstand scrutiny. However, given that the law tends to give heightened protections to homeowners, contractors should be aware that they are putting their businesses at risk if they decide to overlook a building code requirement at the owner’s request.

A general contractor should use caution and consider consulting an attorney in order to discuss how best to limit his potential exposure when a customer insists on ignoring a building code requirement because, contrary to the long-standing creed, the customer is not always right.



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