The Massachusetts Appeals Court has ruled that a consumer cannot waive a contractor’s liability for a building code violation that also violates the Massachusetts Consumer Protection Act, so-called Chapter 93A. In Downey v. Chutehall Construction Co., Ltd., 14-P-1062 (January 6, 2016), the defendant contractor had installed a rubber membrane roof in violation of the Massachusetts State Building Code, which in turn violates the Home Improvement Contractors Act, and then in turn, Chapter 93A. The applicable building code permitted no more than two layers of roofing on a building, whereas the roof in question had four total layers following the contractor’s new installation. The contactor contended that the homeowner represented that there was only one layer of roofing at the time of the work and that the homeowner specifically instructed the contractor to install the new roof over the existing roof. Later, the roof developed leaks and manifested other deficiencies, leading to its complete replacement.

At trial, the judge instructed the jury that the plaintiffs could not recover if the code violation – which becomes a per se violation of Chapter 93A – resulted only because the contractor was instructed by the owner to do the job in that particular way. The jury believed the contractor and found in its favor, applying the law as instructed by the judge. The Appeals Court disagreed, ruling that a consumer’s oral waiver of a building code requirement does not defeat a contractor’s liability for violating the Home Improvement Contractors Act, and thus Chapter 93A. The court heavily emphasized the public safety elements of the building code.

This ruling has potential widespread implications in consumer to business transactions, even outside the construction area. While businesses might argue that the ruling is limited to the particular facts of the Downey case, it logically supports the broader proposition that in general consumers cannot waive a defendant’s Chapter 93A liability, whether they agree to or not.

JAMES PELOQUIN

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