Whose Fault Is It?
Homeowner or Contractor?

Homeowner/contractor disputes arise every day for a variety of reasons. But, at the base of many of these arguments is the question of who is at fault. Did the homeowner waive its rights somehow? Did the contractor ignore homeowner requests or instructions? Did the contractor follow the instructions of the homeowner which were detrimental to the project? Did the homeowner delay the project due to indecisiveness? The finger-pointing begins almost immediately upon the deterioration of the relationship. Complicating matters is that much of the communication between the parties is either not written or documented through cryptic e-mails.

Recently, a Court was tasked with deciding who was at fault for a bad roof. The homeowner hired a roofing contractor to install a rubber roof on a townhouse. At the direction of the homeowner, the new rubber was installed directly over the existing roof. The homeowner refused to allow the roofing contractor to remove the previous roof or to do test cuts to determine the number of layers already on the roof. The roof was completed and the parties went on about their way.

Years later, the homeowner hired an HVAC contractor to install new units on the rooftop of the townhome. When the HVAC contractor cut into the roof, they discovered that the underlying roof was wet and had four layers. The existing building code allows for no more than two layers of roofing. After consulting with another roofing contractor, the roofing system was replaced and the homeowners sued the previous roofing contractor.

The contractor lost at the trial court level and appealed the decision to the appellate court. The question for the parties was whether the contractor was at fault for following the specific direction of the homeowner not to remove the previous roof or perform the test cuts to determine the number of layers. It would seem that the answer should be easy: the homeowner told the contractor not to do it, thus the homeowner should not benefit from that mistake. However, the court decided differently finding that the homeowner could not waive building code requirements imposed on the contractor if the waiver potentially threatened public safety.

While we do not know the breadth and length of the discussion between the homeowner and contractor regarding why the contractor requested to take those additional steps, we do know that the contractor is bound by the building code and must follow it. Perhaps the contractor should not have agreed to perform the job if he was instructed to perform it in a way that violated the building code? Contractors and homeowners are both placed in difficult positions when issues arise on a construction project. It may be that the contractor doesn’t know the code requirement. It may be that the homeowner only sees the project becoming more expensive. Either way, the motivation to take short cuts exists.

A solution to this problem lies in the contract (which must be in writing!) of the parties. The contractor should include a walk away provision in the contract that allows the contractor to leave the project without breaching the contract. The homeowner is waiving its right to bring a claim based on the homeowner’s attempt to have the contractor perform work that violates building codes. In the end, both parties are protected; the contractor stays in compliance with the code and the homeowner gets proper work that won’t become a problem later!

The foregoing is written for educational purposes only and should not be relied upon as legal advice. It should not be utilized as a substitute for the professional services of an attorney. If legal advice is required, the services of a professional should be sought.  Please contact Kurtz Law, PLLC for assistance with legal matters.