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Massachusetts Appeals Court Holds That Homeowner’s Wavier of Building Code Violations Does Not Release Builder From Liability

Posted on February 17, 2016

Usually, when an individual learns that his homebuilder has made an error resulting in a violation of the building code, the natural reaction is to demand that the builder fix the problem and comply with the code. In a recent case of Downey, et al. v. Chutehall Construction Co., Ltd., 88 Mass. App. Ct. 795 (2016), decided by the Massachusetts Appeals Court, just the opposite happened when the homeowner orally waived a contractor’s compliance with the building code, but later sued to recover the costs of replacing the defective work.

In Downey, the plaintiffs, Christopher and Mairead Downey hired Chutehall Construction Co., Ltd., in 2005 to replace the roof and a roof deck on their townhouse in Boston.  Massachusetts building code allows there to be no more than two layers of roofing on a building.  Chutehall initially submitted a proposal to the Downeys that included a line item for stripping off the existing roof system.  Chutehall did not strip the roof, however, but installed a new rubber membrane over the existing roof.  Years after Chutehall put on the roof, the Downeys sought to install HVAC equipment, and, when the HVAC contractor cut a hole through the roof, it discovered four layers of roofing materials.  The Downeys hired a roofing contractor to strip the roofing materials, put on a new roof, and reinstall the deck.  The Downeys then sued Chutehall  to recover the costs of replacing the roof and the deck.

At trial Chutehall contended that Christopher Downey had represented that there was only one layer of roofing at the time of the work and refused to permit Chutehall to strip the existing layers from the roof or perform test cuts in the roof to determine the number of existing layers. A jury found that Chutehall had, in fact, violated the building code, but awarded no damages, finding that the violation was a result of the Downeys’ directions.

On appeal, Massachusetts Appeals Court reversed, holding, “To 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.”  Based upon this public policy interest, the Court concluded that, even if the Downeys had orally waived the building code requirement, Chutehall was still liable for the violation.  In accordance with this holding, the Court, entered judgment in favor of the Downeys and remanded the matter to determine damages.

Although it does not appear that any Ohio Courts have addressed this issue, the decision in Downey demonstrates that an Ohio contractor would likely be held liable for failing to perform its work in strict compliance with the relevant building code, regardless of what a homeowner says.  Downey also emphasizes, as this blog has discussed before, the importance of getting all contract terms, changes, and representations between the parties to a construction project in writing.  For questions regarding Ohio construction contracts, or any other aspect of Ohio construction law, please contact Todd Harpst or Nick Horrigan, at Harpst Ross, Ltd. – Business Lawyers for the Construction Industry®, at (330) 983-9971 or or

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