CAN I BE SUED FOR VIOLATING THE BUILDING CODE?
CLAIMS AGAINST CONTRACTORS AND ARCHITECTS FOR CODE VIOLATIONS
In my construction law practice, I’m often confronted with instances of building code violations and questions of whether building code violations should subject a contractor or architect to liability.
The short answer is that building code violations can lead to civil liability, albeit in a roundabout way.
The Appellate Division of the New York State Supreme Court, First Department, in the case of Koch v. Fox, observed that ordinances such as local building codes might impose a penalty but did not create a private cause of action (a legal basis for bringing a lawsuit). Instead, local building codes impose a duty which might make the person violating them liable under another legal theory. The three main legal theories under which a construction contractor or architect might be sued for violating state and local building codes are breach of contract, negligence, and professional malpractice.
Breach of Contract. In practice, better-written construction contracts address a contractor’s responsibility for complying with local building codes. Even if the contract is silent on the issue of code compliance, however, the law may impose such a requirement on a contractor anyway. In Reale v. Linder, the court stated that “in every home improvement contract, the contractor has an implied duty to perform the contract in accordance with fire prevention and building code requirements.” In that case, a contractor had built an extension for a homeowner with numerous violations. When the contractor sued the homeowner for nonpayment, the homeowner countersued for breach of contract based upon the violations—and was awarded $15,000.00.
This rule becomes fuzzy, however, when the contractor performs his work in accordance with the plans, but the plans are not up to code. There are court decisions to the effect that a contractor is not responsible for defective plans or specifications,suggesting, at least, that a contractor is only liable for code violations that deviate from the plans he is given. In that instance, of course, the designer would have breached the contract by failing to design in accordance with the building code.
Negligence. It has also been recognized by the highest court of New York State, the Court of Appeals, that building code violations constitute evidence of negligence. In such instances, it seems that the building code establishes a duty, and it is the failure to live up that duty that makes the contractor or architect liable.
I must emphasize, however, that a negligence action only exists for personal injury or damage to property other than the building that the contractor or architect produced. For that reason, the project owner would also have to prove that the particular code violation caused the injury or property damage (as opposed to contract situations, where the failure of the building to meet the project owner’s requirements is in and of itself damaging to the owner).
Professional Malpractice. This last is of more concern for architects in their capacity as project designers. A homeowner’s allegations that an architect failed to design a project in accordance with “accepted architectural and building standards” have given rise to a claim for architectural malpractice. The term “building standards” would naturally include local building codes.
There is, however, one instance in which a violation of local building codes may create a private cause of action per se. New York General Municipal Law § 205-a gives a cause of action to firefighters who are injured as the result of a negligent violation of any law or ordinance (including state and local building codes). Interestingly, such a lawsuit can only be brought against a defendant who is in control of the premises at the time of the injury. In the case of Zanghi v. Niagara Frontier Transp. Comm’n, one firefighter was injured and another killed when a section of building collapsed on them, and a lawsuit was commenced against the contractor who built the building, alleging that it had not been built to code and that this had cause the injury and death.
The Court of Appeals dismissed the lawsuit against the contractor because it had completed the work more than 12 years before but allowed that the property owner could still be liable. Although this result is based upon the words of the statute, which refers to the negligent violation of the building code “at the time of the firefighter’s injury”, it leads to the possibly inequitable situation of allowing the party that failed to comply with the building code to go free and heaping responsibility on a homeowner who did not have a part in making the building noncompliant.
As you can see, building code violations can have significant legal consequences for contractors and architects, although, as always, whether or not you may be liable will defend on the facts of your case and the terms of your contract. For contractors, complying with plans and specifications may provide a defense. For architects, the duty to make plans in accordance with building codes is the rule, and strict compliance is necessary if architects are to avoid liability.
Your comments and future article topic suggestions are invited in the field below.
John Caravella Esq., is a construction attorney and formerly practicing project architect at The Law Office of John Caravella, P.C., representing architects, engineers, contractors, subcontractors, and owners in all phases of contract preparation, litigation, and arbitration across New York and Florida. He also serves as an arbitrator to the American Arbitration Association Construction Industry Panel. Mr. Caravella can be reached by email: John@LIConstructionLaw.com or (631) 608-1346.
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 71 A.D. 288, 75 N.Y.S. 913 (1st Dep’t 1902)
 Reale v. Linder, 135 Misc. 2d 317, 514 N.Y.S.2d 1004 (Dist. Ct. Nassau Co. 1987) aff’d as modified, 143 Misc. 2d 496, 544 N.Y.S.2d 702 (App. Term 1988)
 Mohawk Int’l, Inc. v. Zangrilli, 161 A.D.2d 1169, 555 N.Y.S.2d 962 (4th Dep’t 1990)
 Elliott v. City of New York, 95 N.Y.2d 730, 747 N.E.2d 760 (2001)
 See, e.g., Kung v. Zheng, 73 A.D.3d 862, 901 N.Y.S.2d 334 (2ndDep’t 2010)
 85 N.Y.2d 423, 649 N.E.2d 1167 (1995)