Non-compliant Work

Ben Teague is an experienced contractor and consults with plaintiffs and defendants regarding construction compliance issues. Ben Teague has provided litigation support services as an Glossary Link expert witness in litigation cases and recently authored his first book, 'DAMAGED' on the topic of construction litigation.

Construction noncompliance differs from construction defect. In order to verify compliance, home and building owners are getting smart and hiring professional litigation-certified inspectors (not home inspectors) to verify that contractors are performing to current standards. These inspectors know how to pick apart construction to its most minute details. They can then prove, using irrefutable documentation, whether or not contractors are in compliance with required standards. To be fair, there is not a single building on earth that is perfectly compliant with code, whether that is the Glossary Link ASTM (the American Society for Testing and Materials) or Manufacturer installation Specifications. Chapter 8 has more detailed information on the ASTM.

It is a question of where and when, not if, construction contractors fail to comply with applicable standards. Where and when this happens they may have a contract problem, specifically a breach of contract for failure to meet code or other standards. That will depend upon the contract’s language. Most good construction contracts have language that requires some kind of standard construction compliance, whether it is code compliance or other. At a minimum, all construction contracts should require the contractor to comply with the latest applicable building code as issued by the Glossary Link ICC (International Code Council). If a construction contract refers to the building code as a standard reference, all other references apply accordingly, as per ICC Section R102.4, which states:

R102.4 Referenced Codes and Standards. The codes and standards referenced in this code shall be considered part of the requirements of this code to the prescribed extent of each such reference. Where differences occur between provisions of this code and referenced codes and standards, the provisions of this code shall apply.

Exception: Where enforcement of a code provision would violate the conditions of the listing of the equipment or appliance, the condition of the listing and the manufacturer's instructions shall apply

The 2006 Glossary Link IRC references ASTM specifications 510 times. The above quoted section from the 2006 IRC clearly includes the component equipment or appliance manufacturers' installation specifications. If you were to attempt to count all the codes, ASTM references, and other standards and specifications that a contractor needs to know or refer to when building a simple home, they would number in the thousands.

So, if a contract simply refers to the building code as the standard for the subject construction project, then almost all relevant standards and specifications will be applicable, including equipment or appliance installation specifications.

It is reasonable to expect that when contractors fail to comply with referenced standards or with equipment and appliance installation specifications, there is the high potential for a failure. The short-term absence of a failure, deficiency, or associated damage does not eliminate the need to address and correct noncompliance issues. That’s despite the fact that repairing, upgrading, or replacing improperly installed or applied building components can be expensive.

A known noncompliance issue will usually have a negative impact on the property’s value. In fact, most inspectors will more often than not recommend that prospective buyers request that the seller repair replace or upgrade any discovered deficiencies prior to purchase. In some cases, a prospective buyer may also ask the seller to reduce the purchase price of the property. The buyer may cancel the sales contract altogether. Noncompliance issues can cause loss-of-value problems for a building owner and would qualify as a defect.

The relationship between construction noncompliance and defective construction work is a marriage, so to speak. It is reasonable to assume that if you don't maintain construction compliance then you will most likely create deficiencies and then damages to follow. Some home and building owners are heading off the losing battle of dealing with damages found after warranties expire. They are instead introducing breach of contract claims citing noncompliant construction. That allows them to seek funds or reimbursement for repairs prior to any damage.


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