For Contractors: The Customer Might Not Always Be Right


In the competitive world of home improvement, contractors and subcontractors must use their professional judgment before performing work based on a client's request or instruction. If the work violates a building code, catering to the client's specifications could expose the contractor or subcontractor to liability under the Massachusetts Consumer Protection Act, M.G.L. c. 93A, including attorneys' fees and double or treble damages.

Massachusetts General Law Chapter 142A regulates the conduct of home improvement contractors. It specifically prohibits a contractor or subcontractor from violating "the building laws of the Commonwealth or of any political subdivision." M.G.L. c. 142A § 17(10). More importantly, violation of the building laws constitutes an unfair or deceptive act under Chapter 93A. Recently, the Appeals Court of Massachusetts held that a contractor's potential liability under these provisions is not waived when the work was performed according to a request from a homeowner.

In the case of Downey v. Chutehall Const. Co., Ltd., 88 Mass.App.Ct. 795 (2016), the Downeys hired Chutehall to replace the roof and a deck on their Boston townhouse. The Massachusetts Building Code permits no more than two layers of roofing on a building. See 780 Code Mass. Regs. § 1512.3 (1997). The original written proposal for the job included language stating that Chutehall would "strip off and dispose of [the] existing roof system." Chutehall did not strip off the existing roof, as Mr. Downey refused to permit Chutehall to strip off the existing roof, represented that there was only one layer of existing roofing, refused to permit test cuts to determine the number of existing layers, and specifically instructed Chutehall to install a new rubber membrane on top of the existing roof. Chutehall complied with the Downeys' instructions and installed a new rubber roof over the existing roof.

A few years later, the Downeys had new HVAC equipment installed. In the course of installation, the HVAC contractor cut a hole through the roof and discovered four layers of roofing. The Downeys ultimately had their entire roof stripped and replaced. The Downeys sued Chutehall for the costs of the repair, including a claim under M.G.L. c. 93A by virtue of violation of M.C.L. c. 142A § 17(10).

The trial Court instructed the jury that Chutehall could only be liable if there was a violation of the building code and the violation was not done at the insistence of the Downeys. The jury found in favor of Chutehall because the installation of the new roof in violation of the building code was done at the direction of the Downeys. The Downey's appeal followed.

The Appeals Court reversed the trial Court, finding that "an oral waiver of building code requirements by the homeowner does not preclude the contractor's liability for a building code violation - and the resultant c. 93A violation - particularly where a violation carries potential public safety consequences." Downey v. Chutehall Const. Co., Ltd., 88 Mass.App.Ct. 795, 795-796 (2016) (emphasis added).

The Appeals Court indicated that its decision was based on "the circumstances of this case," but the implications of its ruling should be a warning to contractors and subcontractors not to satisfy their clients' wishes without first evaluating whether doing so violates any state or local building codes.

We constantly monitor legal developments in our practice areas to provide the best representation possible for our clients. If you have any questions about this or other issues relating to construction litigation, please feel free to contact David Governo at [email protected] or Robert L. Boston at [email protected].