With Regard to Building Codes, the Customer is Not Always Right

Consumer Protection Act in Massachusetts

While it is generally good business practice to adhere to a consumer’s wishes when engaged on a construction project, a recent decision by a Massachusetts Appeals Court indicates that a contractor who violates building codes at the instruction of his client does so at his own peril.

In Downey v. Chutehall Construction, Co., Ltd., No 14-P-1062 (Mass. App. Ct. Jan. 6, 2016), the contractor, Chutehall, was retained by the plaintiff, Downey, to replace the roof and roof deck on their townhouse. Pursuant to the building code, no more than two layers of roofing material were permitted on the building. Chutehall’s original proposal specified that the existing roof system would be stripped off and replaced. However, in completing the work, Chutehall did not strip off the existing materials and instead installed a new rubber membrane over the existing roof. Downey had orally agreed to such work, waiving the building code requirements at issue. Several years later, Downey sought to install HVAC equipment on the roof and it was discovered that there were four layers of roofing material present. Downey replaced the roof, and brought suit against Chutehall to recover the costs. In addition, Downey pursues a Consumer Protection Act claim, as violation of the state building code constitutes an “unfair or deceptive act” pursuant to G.L.c. 142A §17.

To no avail, Chutehall argued that the Consumer Protection Act claim must be dismissed because Downey had orally waived the applicable building code. The court held that Downey could proceed with the Consumer Protection Act claim despite the oral waiver, holding that “[t]o 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 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.” Id. at 11. As such, the Consumer Protection Act claim, and the potential double and treble damages and attorneys’ fees that it provides, was permitted to stand.

All contractors and subcontractors doing business in Massachusetts, as well as those in the surrounding New England states that often look to Massachusetts courts for guidance, should be mindful of the Chutehall decision while negotiating with clients on future projects.