By Bruce Jervis
Compliance with applicable building codes is the responsibility of property owners and contractors alike. Owners have a legal obligation to erect and maintain a code-compliant structure. For contractors, code compliance is an express or implied term of the construction contract. And, of course, code violations can subject a contractor to license revocation and other sanctions. Given this dual responsibility, what is the result when a property owner directs a contractor to perform work in a manner that violates a building code?
A Massachusetts court recently grappled with this question. A homeowner allegedly misrepresented the number of layers of existing roofing material and directed a contractor to apply a rubber membrane over the existing material. The contractor complied, but this resulted in a building code violation. The owner was allowed to recover the cost of correction plus attorney fees from the contractor under a state consumer protection statute. The public policy of facilitating code enforcement outweighed the inequity of ignoring the homeowner’s own misconduct.
This case arose in a consumer/homeowner context. A project owner on a commercial project would not have the same legal remedies. For all contractors, however, the message is the same. Violation of applicable building codes places the contractor in legal jeopardy, even if the project owner directed the work that created the code violation. Have you seen instances in which an owner directive raised questions regarding code compliance? Your comments are welcomed.