Who bears responsibility for a code violation?


GeneDavis
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My tract house has a roof plane coming to a "dead" valley, a situation any of us knows, if we pay attention, required a cricket.  It's in Florida, and the state's code mandates a cricket when the abutting penetration wall length is 30 inches or more.  My condition is 56 inches.

 

The house is a year out of warranty, and builder says he bears no responsibility to fix it.  He repaired a leak in the area when the house was approaching the end of its 2 year warranty.  The leak is back.  The builder says too bad.

 

The county's building department says it is not their responsibility to catch this in plans review.  They say if the plan comes to them, as all plans must do, bearing the seal of the state-licensed pro, the signoff means the design meets code in every respect.

 

So the building department sends me to the firm who designed the house, saying it's their fault.  And they send me to an independent engineer, the guy with the license and stamp, and the designers say it's his job to catch it.

 

The engineer won't return my call, but I just left the message earlier today.  I said nothing about code or a problem in my message, only that I needed some information only he would have, for a plan he reviewed and signed.

 

How would this go in the jurisdictions in which you work?

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Hi Gene,

 

I actually know quite a bit about this topic although it does vary some from state to state. First, did you have a signed agreement for the work that was performed on your house with the general contractor who was on the permit for the project? Second, did he use hire a subcontractor for the work on the roof or perform the work himself? 

 

A couple other items,

1) Even if you are beyond the timeframe of the warranty provided that doesn't necessarily mean he's off the hook and its your problem now.

2) What really will need to be determined is if this is a material defect, poor workmanship (bad install), or if there was an outside event that impacted the area which caused the damage.

3) Proving number 2 ^

 

EDIT: As far as the building department goes, to my knowledge most jurisdictions (nationwide) have essentially qualified immunity for the inspectors and plan reviewers. The building department technically isn't there for the benefit or interests of the homeowner, its there to protect the jurisdiction and ensure your project meets the codes they feel would prevent you from negatively impacting public interests.

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Our contract was for the tract builder, a big national firm building in many states, to build the home.  The roofer (this is a cement tile finish) was a sub.  It is that sub that fixed the first incident of leaking.

 

A rep from that roofing outfit that did the job and the fix came out and inspected, and I pointed out the no-cricket condition, which I had not noted before, never having gone on the roof.  See the pic, the black roof plane is the 2:12 cricket I modeled into place where there is none now.  The roofing rep said that they simply roof what gets built, that to have done a cricket at build-new time would have required the framing sub, ahead of the roof work, to have built the cricket structure.

 

IMHO, the drawings should have called for the cricket, which they did not, and there should have been details to show how to kick the mini-valley's discharge away from the wall at the valley's end.  But nothing was shown on the poor set of prints provided.

 

Ours was the first of 24 houses with this condition in this community, 12 of which are still under warranty.  I am sorely tempted to raise a ruckus with those 12 at the same time I raise a ruckus with the builder.

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This may qualify as a "construction defect", although it is not clear if is a patent or latent defect, which have different statutes of repose. A construction defect is entirely different from warranty issues, and a contractor may not say, "oh, sorry, the warranty is up. Not my problem." https://www.jimersonfirm.com/blog/2020/06/insurers-statute-repose-limitations-construction-defects/   While the finger might be pointed at different entities, the bottom line is that nothing exempts a contractor (sub or general) for liability from installing work that they know is not to Code. I would certainly make sure to give the pre-suit notice as per the article to protect any rights you have from expiring, but beyond that, you may be into attorney territory. It's also worth a call to your homeowner's insurance company to see if they have any input.

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  • 2 weeks later...

Gene,

 

While my current capacity is filled as a GC/Designer/Code Official, by trade I am a framer.  As a framer, and regardless of plans, I'd never of allowed for that situation to have been created without a cricket, its a ticking time bomb (which you're well aware of now...).  If the GC I was framing for told me to construct it that way, I would've made him sign an affidavit acknowledging his choice of construction, potential risk, and that I would not be responsible for any water related issues.  In my 25 years of framing, I thankfully never came across such a thing.

 

Regarding plan review and periodic inspections during construction-  This is not an item, if not specified on the plan, would stick out to me as an item to note to the contractor.  How often are stair rails/guards not noted on plans (a lot!), but they surely are installed during construction.  The inspection thing could go either way.  I could point out the potential issue and refuse to sign their card until it's corrected....if they disagree, they can appeal my decision, which turns into a drawn out mess for the GC.  Or the inspector could see it and have the mindset of "it's not a safety issue, that's on the GC", and not bring it up.  I would NOT choose the latter.

 

As Tina mentioned (I think), building departments are designed for assigning liability to others throughout the process.  If done correctly, there is someone on the hook for multiple stages of the process, with them not being on the end of any.  Not saying departments cannot be held liable ever, but good luck with that route.

 

My gut says this is on the GC, they allowed the situation to occur, and shame on them for it...

 

Hope you're able to get this resolved.

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