The contractor installed a membrane roof on top of three existing layers of roofing, claiming that the homeowner orally directed this step and orally directed that the existing roofing not be stripped. The building code prohibits more than two layers of roofing, and so the new roofing installation violated the code. In the ensuing lawsuit the owner argued that violation of the code was per se a violation of the consumer protection statute, Mass. Gen. Laws chapter 93A, and thus the contractor was liable for damages under that law. The Massachusetts Appeals Court has held that the home improvement contractor law, which states that a contractor’s failure to comply with the building code is a violation of the consumer protection statute, cannot be orally waived by the owner.

The original quote from Chutehall Construction included a line item for stripping the existing roof, which was never done. Chutehall claimed at trial that the homeowner had told Chutehall not to take that step, which the homeowner disputed. The Appeals Court commented that “it is likely that the jury accepted Chutehall’s version of the facts,” given the jury’s answer to various questions. But the issue remained: could the homeowner effectively waive the code requirement, thus absolving the contractor from liability?

The jury found that installation of the new roofing membrane on top of three existing layers violated the building code, but that the violation was the direct result of directives from the owner. The appellate court noted, though, that the home improvement contractor law (Mass. Gen. Laws ch. 142A, section 17(10)) prohibits a contractor from violating the code, and further provides that any such violation “shall constitute an unfair or deceptive act under the provisions of chapter ninety-three A.” It then discussed case law to the effect that waiver of a statutory requirement may be acceptable “when the waiver would not frustrate the policies of the statute.” But a statutory right could not be disclaimed if the waiver would “do violence to the public policy underlying the legislative enactment.”

The court cited the purpose of the home improvement contractor law, to “insure public safety, health and welfare insofar as they are affected by building construction.” It then said:

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.

Noting that there are public safety consequences of failing to abide by the building code, the Appeals Court held that the homeowner’s oral waiver of the code requirement could not override the contractor’s liability for violating the home improvement contractor law. The case was remanded to the trial court to rule on the homeowner’s claim for damages arising from this violation, although the court commented in a footnote that “the judge may properly consider the jury’s findings when considering damages.” (Which is to say, if the jury believed the contractor and not the homeowner as to this alleged directive not to strip the roof, the judge may conclude that the homeowner’s damages are minimal.) The case is Downey v. Chutehall Construction Co., Ltd., Mass. App. Ct. (Jan. 6, 2016), available here.