Building Code Enforcement and Contractual Consequences
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My part in a building code seminar sponsored by Lorman Education Services. This presentation focuses on building code enforcement mechanisms in Louisiana, and the effect building code violations can have on contracts, parties to contracts, and third parties. Also, it touches on defenses available to parties when building code violations exist, as well as green building code issues that are now arising with green building projects.
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Building Code Enforcement and Contractual Consequences
- 1. Building Code Enforcement & Contractual Consequences Scott G. Wolfe Jr. Wolfe Law Group ConstructionLawMonitor.com WolfeLaw.com
- 2. A Building Code A building code is a set of rules that specify the minimum acceptable level of safety for constructed objects such as buildings. The main purpose of building codes are to protect public health, safety and general welfare as they relate to the construction and occupancy of buildings and structures. The building code becomes law of a particular jurisdiction when formally enacted by the appropriate authority. http://en.wikipedia.org/wiki/Building_code
- 6. La. C.C. art 775 Building restrictions are charges imposed by the owner of an immovable in pursuance of a general plan governing building standards, specified uses, and improvements. The plan must be feasible and capable of being preserved.
- 7. Private Building Restrictions Examples • Restrict property purpose (residential, commercial, recreational, etc. • Restrict property elements (allowed paint colors, height of building, façade decorations, etc.) • Restrict who can obtain property (Not based on sex, creed, race, etc.)
- 8. Restrictions are passed through recordation, and restrict the land itself. Therefore, this is not a contractual obligation. Transfers of the property are made subject to the recorded restrictions.
- 10. IBC is adopted in jurisdictions in all 50 states. But, National Fire Protection Association (NFPA) promote alternative sets of codes. Jurisdictions are placed between two organizations when choosing which codes to adopt.
- 11. Government Enforcement Government Enforcement of True Building Codes
- 13. Discretion
- 14. Discretion New Orleans: Department of Safety and Permits §103.1: Director has the authority to render interpretations of this code and to adopt policies and procedures in order to clarify the intent and purposes of this code. §103.11: Director shall have the authority to grant modifications of the code for individual cases when there are practical difficulties §103.15: Director shall determine any requirements necessary for the strength or stability of an existing or proposed building or structure...not specifically covered by the code.
- 15. Discretion New Orleans: Department of Safety and Permits §105.6: Director is authorized to suspend or revoke a permit issued under the provisions of this code whereever the permit is issued in error or on the basis of incorrect, inaccurate or any false statement or misrepresentation, or in violation of any ordinance or regulation or any of the provisions of this code. §110.5: Director can similarly revoke a certificate or occupancy or completion.
- 18. Enforcement Procedures Those who commence work before getting a permit are subject to a penalty of 200% to 100% of all permitting fees, the amount of the fine depending on when work was commenced in relation to the building permit application’s filing.
- 19. Enforcement Procedures Notice of Violation Director can serve notice of violation or order on contractor. Notice shall direct discontinuance of the illegal action or condition and the abatement of the violation. It can be a “stop work order.” Prosecution of Violation If notice is not complied with promptly, director gets the City Attorney to institute legal proceedings to restrain, correct, or abate the violation. Violations / Penalties Violations subject the violator to penalties. For purposes of determining penalties, §17.3 of New Orleans ordinance provides that “each day violation continues is a separate violation.”
- 20. Penalties Available • Misdemeanor, fine and/or imprisonment • Fines • Stop Work Orders • Demolition (an extraordinary remedy, usually used only to demolish blighted properties in Louisiana, however, may require demolition of unauthorized work).
- 22. Discretion
- 24. The Right to Appeal Building owner may appeal whenever s/he disagrees with any decision of the director, or disagrees with rulings of the Director, or decision that provisions of a code does not apply. FirstAdministrative Appellate Review Some Second District Court
- 27. Issues With An Appeal • First appeal is to an administrative board, and not a court. Qualities: (i) Less formality; (ii) Will consider less reliable evidence; (iii) Not legally trained; (iv) Not based on adversarial system; etc. • With administrative law and court, will always have to get over discretion hurdle.
- 28. Issues With An Appeal • Mind Your Deadlines!!! • Representation is not mandatory, but can be extraordinarily helpful.
- 29. Mandamus La. C.C.P. art 3862 Mandamus is a proceeding filed against a government official to command that s/he perform an act that it has the ministerial duty to perform.
- 30. Mandamus Theory is that a code enforcer or director may be forced to issue or revoke a permit, because it is the directors ministerial duty to enforce or revoke the permit.
- 31. Mandamus “Mandamus proceedings against government officials are typically not available to command performance of an act that contains any element of discretion, except that mandamus have been allowed to correct an arbitrary and capricious abuse of discretion by a public board or official.” Fire Prot. Dist. Six v. City of Baton Rouge Dep’t of Pub Works, 868 So. 2d 770 (La. App. 1 Cir. 2003).
- 32. Mandamus Adjacent Landowner’s Mandamus proceeding failed because Building Official for Ascension Parish did not abuse discretion in interpreting new building code to be inapplicable to construction that started before the new code was effective, even if the construction stopped and re- started after the new building code became effective. King v. Bourgeois, 903 So.2d 549 (La. 1 Cir. 2005)
- 33. Mandamus When administrative board determined that a permit should issue, and no appeal was filed on this determination, issuing the building permit was no longer a discretionary act....it was ministerial, and a mandamus action was appropriate. Moyse v. City of Baton Rouge, 938 So.2d 1013 (La. App. 2006)
- 34. Clark v. City of Shreveport 655 So.2d 617 (La. App. 2 Cir. 1995) • The action of a governmental body is arbitrary capricious and unreasonable if it bears no relation to the health, safety or general welfare of the public. • Test is whether action is reasonable under the circumstances • When permits are granted in similar situations and refused in others, the refusal may constitute nonuniform application of ordinances that is arbitrary
- 35. Raburn v. Williams 786 So.2d 955 (La. App. 2 Cir. 2001) Violation of a specific city ordinance, rule or regulation that prohibits such action may constitute an abuse of discretion.
- 36. Best Practice Do not rely on the mandamus proceeding, as it may be difficult to qualify for use of the proceeding. There are benefits to this remedy (fast court date, for example), but do not simultaneously allow your administrative appeal rights to expire.
- 37. Codes, Code-Like Requirements & The Construction Contract
- 38. Law, Obligations & Consequences Between the Parties
- 40. It is an established principle that laws that exist at the time of execution of a contract form a part of that contract and are incorporated in it. These laws form part of the contract as though expressly written therein. Thus, where a parish or city has in effect a building code, the provisions of that building code form a part of every construction contract executed in that parish or city. Such a contract contemplates a building constructed in compliance with local building code requirements, as though expressly written into the contract. Bonvillain Builders, LLC v Gentile, 29 So.3d 625 (La. 1st Cir. 2009)
- 41. Responsible Parties Code Violations
- 42. The Spearin Doctrine If a contractor is bound according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications. United States v. Spearin, 248 U.S. 132 (1918)
- 43. The Spearin Doctrine No contractor, including but not limited to a residential building contractor as defined in RS 37:2150.1(9), shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration, or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration, or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor. La. R.S. 9:2771
- 45. Responsible Parties Building Permit Problems
- 46. Responsible Parties Building Permit Problems • Who is responsible for obtaining the building permit? • Whose fault is the stop work order, building permit error, etc? • What are the damages?
- 48. Exceptions to the Spearin Doctrine • Contractor fails to follow plans or specifications Austin Homes, Inc. v. Thibodeaux, 821 So.2d 10 (La. App. 3 Cir 2002) • Contract has clause that requires contractor to review plans and specs for accuracy or to assume liability for plans and specs • Contract has clause requiring contractor to inspect jobsite, and under some circumstances, when problems with plans and specs are obvious from an inspection.
- 49. Exceptions to the Spearin Doctrine If there are no specifications, contractor’s duty is governed by La. C.C. art 2769: “If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from his non-compliance with his contract.”
- 50. Exceptions to the Spearin Doctrine In construction contracts, Louisiana law implies that the contractor will construct the work in a good and workmanlike manner, the work will be suitable for its intended purpose and the work will be free of defects in workmanship or materials. An owner seeking to recover from a contractor bears the burden of proving: 1) both the existence and natuure of the defects; 2) that the defects were due to faulty materials or workmanship; and 3) the cost of repairing the defects. Guy T. Williams Realty Inc. v Shamrock Construction, 564 So.2d 689 (La. App 5th Cir. 1990)
- 51. Residential Construction & The New Home Warranty Act
- 52. New Home Warranty Act • Exclusive Remedy for defects • Must be brought within certain periods (1 year, 2 years, 5 years) • Must provide contractor with written notification of defects by certified mail
- 53. Exclusive Remedy Re: Building Codes LA. R.S. 9:3141: The warranty, which is mandatory in most cases, shall apply whether or not building code regulations are in effect in the location of the structure, thereby promotion uniformity of defined building standards. Additionally, all provisions of this Chapter shall apply to any defect although there is no building standard directly regulating the defective workmanship or materials.
- 54. Written Notice Under New Home Warranty Act Although written notice by certified or registered mail is required by the statutes, case law has accepted notice by oral communications. Frank v.Tran, 974 So.2d 861 (La. App. 2008)
- 55. Change Orders & Building Codes
- 56. Change Orders & Building Codes Building codes present a change order problem. What if a contractor begins work without knowledge of a particular building code, constructs a non-compliant feature, and gets a stop work order. Can the contractor issue a change order for the “extra work” to conform to the overlooked building code?
- 57. Change Orders & Building Codes Despite the Bonvillains' admitted ignorance of the existence of the building code's drainage requirement, there is nothing to suggest that the parish ordinance was not properly adopted and promulgated. The building code's drainage requirement formed an implied part of the construction contract, with the same force and effect as if it had been expressly stated therein. Bonvillain Builders, LLC v Gentile, 29 So.3d 625 (La. 1st Cir. 2009)
- 58. Change Orders & Building Codes Despite the Bonvillains' admitted ignorance of the existence of the building code's drainage requirement, there is nothing to suggest that the parish ordinance was not properly adopted and promulgated. The building code's drainage requirement formed an implied part of the construction contract, with the same force and effect as if it had been expressly stated therein. Bonvillain Builders, LLC v Gentile, 29 So.3d 625 (La. 1st Cir. 2009)
- 59. Obvious Defects & Building Codes
- 60. Obvious Defects & Building Codes It is well settled that where an owner proves the existence of defects or omissions and the cost of repairing them, he is nevertheless barred from recovering those costs if he accepted the work despite the patent defects or imperfections discoverable upon reasonable inspection. Despite acceptance, however, an owner may recover for defects not readily discoverable by ordinary inspection or for defects that manifest themselves subsequent to the acceptance or for defects that are reasonably excluded from the terms of the acceptance. State v. Wilco Constr. Co., 393 So. 2d 885 (La.App. 4 Cir. 1981)
- 61. Disagreement About Building Code Compliance
- 63. Negligence & Building Codes Building Code Violation That Causes an Injury or Property Damages = Per Se Negligence. Aetna Cas & Sur. Co. v. Chrissy Fowler Lumber Co., 687 P.2d 514 (Colo. App. 1984).
- 64. Negligence & Building Codes Plaintiffs in Abraham argued that the contractor breached a standard of care / duty by violating the Oregon Building Code. The Oregon Court of Appeals agreed that the Oregon Building Code created a standard of care, allowing a negligence claim to proceed. The negligence claim was not for an “injury” caused by the building code violation, but for the defect in the building code violation itself. Abraham v.T. Henry Construction, Inc. 230 Or. App. 564 (2009) Writ accepted by Supreme Court (pending)
- 66. Green Building Codes • California Green Building Code • DC Green Building Act (http://bit.ly/ajMac7) • IGCC (http://bit.ly/cC1GvV)
- 67. Energy Inspectors • Cities like Austin and New Orleans are tightening energy codes and emphasizing role of energy inspectors. • New York Times Article (http://nyti.ms/a841ad) • Construction Law Monitor Article (http://bit.ly/bP180O)
- 68. Reporting Energy • Cities like Seattle, WA are passing municipal regulations requiring certain properties to report their energy consumption, with plans on regulating consumption in the future. • CLM Article on Requirements (http://bit.ly/cXk8a0)
- 69. Tax Credits Tax Credits are available in certain locally, federally and state-wide for solar installations, energy performance, rating certifications and more....
- 70. LEED Challenges LEED Challenges: http://bit.ly/aLvGkL LEED De-Certifications: http://bit.ly/bQuxgc
- 71. Regular Litigation and Building Code Violations v. Green Litigation and Standard Violations
- 73. Unmet Expectations • Cost: The project cost more than expected
- 74. Unmet Expectations • Cost: The project cost more than expected • Scope: The project’s scope was more expansive than anticipated
- 75. Unmet Expectations • Cost: The project cost more than expected • Scope: The project’s scope was more expansive than anticipated • Schedule: Completion took longer than planned
- 76. Unmet Expectations • Cost: The project cost more than expected • Scope: The project’s scope was more expansive than anticipated • Schedule: Completion took longer than planned • Quality: The workmanship quality was inferior to expectations.
- 77. Still... Unmet Expectations
- 78. Still... Unmet Expectations • Energy Performance: Is the building’s energy systems performing as expected (or promised)?
- 79. Still... Unmet Expectations • Energy Performance: Is the building’s energy systems performing as expected (or promised)? • Rating: Did the building achieve the planned LEED rating or other certification?
- 80. Still... Unmet Expectations • Energy Performance: Is the building’s energy systems performing as expected (or promised)? • Rating: Did the building achieve the planned LEED rating or other certification? • Long-Term Sustainability: What is the project’s impact on the environment, and is this as expected?
- 81. Plus... Unique Risks & Features
- 82. Plus... Unique Risks & Features
- 83. Plus... Unique Risks & Features
- 84. Plus... Unique Risks & Features
- 87. Building Code Enforcement & Contractual Consequences Scott G. Wolfe Jr. Wolfe Law Group ConstructionLawMonitor.com WolfeLaw.com
Notes de l'éditeur
- Ancient Babylon has the first building codes, known as the Code of Hammuraby. Only one example of the code survives today, inscribed on a 7 foot, four inch tall basalt stone slab, currenly on display at the Louvre Museum in Paris.\n
- This is extremely basic, but it’s good to get to the root of things when you start a discussion. This is a good definition of what a building code is. But, for the purposes of our discussion, it’s important to think of some other things that “feel like” building codes, and act like building codes.\n
- What about this, anyone heard of LEED? Is this a building code?\n
- Or what about this? While we may think of them as pure standards, they can actually feel like a code...and sometimes, actually take on the form of a code, in that municipalities are now adopting some of these standards as the “code” contractors must comply with when constructing public works...or when trying to qualify for certain tax or grant benefits.\n
- And these... Construction specifications are simply contract requirements, and not true codes. But, they the more specific a specification becomes, the more code-like it becomes - especially between the parties. And that is one distinguishing feature we will make, is code between the contractor and the government, versus codes and building standards between the owner and the contractor, or other contractual parties. What becomes interesting is how these two intersect when the code and the contract requires two different actions.\n
- And then this. I do know that the LEED and Entergy Star standards are standards, and not actu\n
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- In 2007, Louisiana adopted the International Business Code. This is a contrast to the building code scheme in Louisiana before 2007, when every parish had control to create their own codes. Now, there is a uniform construction code across the state of Louisiana...which is NICE.\n
- While the IBC is very, very successful, it is not unanimously adopted (and if it was, there would be monopoly concerns, anyway). But, this does make an interesting code war that leaves jurisdictions and the trades in the middle of a fight over nuances.\n
- Let’s start by discussing the true building codes out there - the ones that are enforced by states, municipalities, and the like. Here, we’re really talking about parish enforcement of the codes. Now, there are a few things we need to keep in mind.\n
- Obviously, the parish code enforcers and permit departments have quite a reputation for corruption, whether its earned or unearned. If there is corruption or the appearance of corruption, it’s likely because of this next slide.\n
- Directors of permitting departments and code enforcers have just a ton of discretion. A ton! As a result of the heavy discretion, they can read the code in ways that make builders and property owners susceptible to their whims. This, of course, produces a fertile environment for corruption. \n
- Here are some examples of the Director’s discretion. While this is the New Orleans ordinance, it’s nearly identical across the entire county. You can see that the Director has heavy discretionary control when it comes to applying the code.\n
- Discretion doesn’t end once a building permit is issued, or when the certificate of completion or occupancy is issue. Technically, I suppose the discretion and authority never ends. They have pretty broad authority to go back in time when they change their mind.\n
- An example of this “post-permit” action happened just this month in connection with a building being constructed on Magazine Street in New Orleans. It got a lot of news. The permit was issued, and the pilates studio went through all the right channels. They sent a drawing into the city saying they would build this...\n
- And then they built this. The third floor was the issue that the Director focused on, because they had their hands tied a bit in already issuing the permit. The Director’s office argued that the addition of the third floor rendered their drawing a misrepresentation of the construction. Really, it was public pressure about the size of the building. Nevertheless, it goes to show that the director has broad authority to go in and change its mind. Here, the developer had the proper permits and approval, and had invested a significant amount of money into the project...and then it was stopped. There are delay costs, scheduling problems, and then they had to potentially change the plans.\n
- So, let’s get into what the city and director can do to enforce the codes that they interpret. This first slide regards the penalties that can be charged when someone starts work without a permit.\n
- This regards the penalties and injunctions that can be placed during a project.\n
- So, let’s get into what the city and director can do to enforce the codes that they interpret. \n
- So, your on a project and the director pulls a permit, or refuses to issue a permit, or refuses to issue a certificate of completion or certificate of substantial completion. Nothing is going to change their mind and you’re fighting with the director about his interpretation. What do you do?\n
- First, you remember this word, and recognize what you’re up against. \n
- I have this painting in my office, because it reminds me of how I feel sometimes representing businesses. Notice what’s going on here. There is a cat judge, all of the jury are cats, the lawyers and bailiff are cats, the plaintiff is a cat, and the defendant is a dog. The dog is chasing the cat across the street, where the cat gets hit by a car.\n\nIf you get into a fight with the director, you may feel like this dog.\n\nThe director is the judge (he interprets the rules).\nHe has enough discretion to actually make the rules (legislative function, a bit)\nHe enforces the rules (executive function)\n\n
- If there is a dispute, you’re not without options. There is a right to appeal. But, like I said, there are challenges to appealing a government’s ruling.\n
- Here are two cartoons that I thought were cute, that demonstrate some of the frustrations and challenges with an appeal.\n
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- Administrative board is not a court. It is a lot less formal, which means these things.\n\nAlso, remember that with both the administrative law court and the regular court, the concept that the director has discretion will always be hanging over the proceeding.\n
- Deadlines in these appeals come and go very, very quickly (sometimes, just 10, 15 or 20 days from a decision). Once the deadline is passed, the director can virtually be as arbitrary as he’d like, and there’s little you can do about it. Make sure you follow these strict deadlines.\n\nAlso, insofar as the court hearing, representation may be required. But in the administrative proceeding, even through the proceeding allows you to appear without representation and the proceeding is “informal,” it’s a good idea to get council. The district court will review the administrative court’s findings, and so you don’t necessarily get to start from scratch in the district court. Having an attorney present will help you build the record, and focus on the important legal issues. Plus, sometimes these administrative panels are unsure of the laws b/c they are not legally trained, and may actually rely on counsel at the hearing to help clarify the issues. The city will likely have a city attorney present.\n
- If you miss your appeal deadlines, or even if you want to file something contemporaneously with your appeal to get to court quicker, the mandamus proceeding is something to keep in mind. It is frequently used by people to force a permit officer to issue a permit, deny a permit, etc.\n
- This is the theory as to why the Mandamus proceeding is used.\n
- This is the theory as to why the Mandamus proceeding is used.\n
- This says the same thing, but a bit of a twist, because the mandamus proceeding was brought by an adjacent landowner.\n
- This is the reverse of those other two decisions. Basically, after a property owner won before the administrative board and the admin board found that the permit should issue, the building officer continued to refuse to issue the permit. The appeal period came and went, and the property owner didn’t file an appeal (b/c he didn’t lose). When the owner filed the mandamus action, the building permit officer argued that the mandamus had “prescribed” because the appeal period was closed. But the court found otherwise, distinguishing the appeal process and the mandamus action, and saying that once the admin board ordered the issuance of the building permit, the job was ministerial, and could be commanded through mandamus.\n
- So on the one hand, a mandamus may be appropriate if the duty of the building officer is ministerial and does not allow a shred of discretion. On the other hand, it is also appropriate if the discretion of the building code officer is abused, the standard of which is set forth in this case.\n
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- Let’s turn away from building codes and how this causes disputes with governmental entities and officials, and we’ll address how codes and code-like requirements affect the parities and contracts.\n
- We’re looking at the law, obligations & consequences between the parties. The building codes can affect this, as can these other code-like requirements we discussed earlier.\n
- Which are these things.\n
- The Building Code is not irrelevant to the parties, as one party may have a cause of action against another based on a building code violation.\n\nThis is a 2009 case. What is interesting here is that the courts specifically state that building codes are incorporated into every construction contract, regardless of whether it is or is not mentioned. It is common for contracts to say “contractor agrees to build to code.” But here, the court is hinting that a contract doesn’t even need that.\n
- It’s not a construction project if there isn’t some finger pointing going around. So, when there is a code violation....whose fault is it?\n
- This is the often pleaded Spearin Doctrine. It holds as it says. Which begs the question, what if the plans or specifications requires the contractor to build in a way that causes a code violation, but the contractor agreed to (or is required to according to Bonvillain Builders) to build to code. Who is responsible for the violation?\n
- Spearin Doctrine is codified into Louisiana law.\n
- Recent case I was involved with had a number of allegations, but one of them was regarding the lighting required by an elevator. There was a requirement for a certain number of footcandles, and the area did not have the proper amount b/c there were enough light installations. We argued that the light fixtures were specifically ordered by the owner, and were installed in the places specifically required by the architect. Spearin protection?\n
- It’s not a construction project if there isn’t some finger pointing going around. So, when there is a code violation....whose fault is it?\n
- Rather than a code violation, let’s look back to a problem with the building permit. \n\nContracts sometimes stipulate who is responsible for obtaining a building permit. This will likely have a lot to do with who is responsible for problems in obtaining a building permit. And is one reason why general contractors ought be cautious about accepting this responsiblilty, when it lacks certain controls.\n\nIf there is a stop work order, who is at fault?\n\nWhat are the damages?\n
- Go back to our Magazine Street example. When worked stopped - the general contractor had to stop work, and the subs and suppliers had to pull off the job. Everyone’s schedule is affected, and jobs that folks had lined up after this one must get shifted around.\n\nWho pays for these delays? \nWho pays for the extra work in securing the site while the stop work order is adjudicated?\nIf the city was arbitrary and capricious, can they be sued for damages?\n
- There are some exceptions, or possible exceptoins\n
- And of course, if there are no specs\n
- And this spells out the standard a bit more.\n
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- It’s not a construction project if there isn’t some finger pointing going around. So, when there is a code violation....whose fault is it?\n
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- In this case: \n\nA contractor was trying to get a change order approved and an additional $30-40k to perform work on a drainage system. The existing drainage system needed to be brought up to code, but the contractor argued this wasn’t in their scope of work because they didn’t realize the drainage system wasn’t to code.\n\nBut, since the code is the law, and a construction contract obligates a contractor to build according to the legal requirements (the building code), the contractor could not get a change order to do work he was legally required to do.\n
- In this case: \n\nA contractor was trying to get a change order approved and an additional $30-40k to perform work on a drainage system. The existing drainage system needed to be brought up to code, but the contractor argued this wasn’t in their scope of work because they didn’t realize the drainage system wasn’t to code.\n\nBut, since the code is the law, and a construction contract obligates a contractor to build according to the legal requirements (the building code), the contractor could not get a change order to do work he was legally required to do.\n
- Another interesting question is whether an owner can claim damages from a defect that he accepted, which was open and obvious at the time of inspection.\n
- Couldn’t find anything directly on point, but this would seem to suggest that the answer is no.\n
- Here is an interesting situation, and just something we can talk about or you guys can think about. What if there is disagreement between a property owner and a building code enforcer about whether a code is complied with, and the contractor is being held liable for the disagreement.\n\nExample: Involved in a case where an elevator had passed inspection. The property owner claimed that the elevator did not meet code, but relied on NFPA (not the code actually in force). Owner alleged contractor agreed to build in compliance with “all building codes.” Owner claimed that just because the project passed inspection doesn’t mean the code was actually met.\n\nWe brought inspector out and everything, but owner stuck to their guns. I think this is a bad argument to make, but one that could be made. Whether the code was or was not violated would likely be a question of fact, and the code inspectors judgment would only be considered in court, not conclusive...likely.\n
- Let’s think about negligence law a little bit. I couldn’t find too much case law on negligence issues in Louisiana, that implicated building codes...but there is plenty outside Louisiana. Here are some key issues.\n
- Explain what this means.\n
- While Louisiana is not a subscriber to the true common law economic loss rule, it is worth considering because of the implication building code violations have on these types of claims, and because a lot of neighboring jurisdictions do have an economic loss rule.\n\nThe Economic Loss Rule is simply that a plaintiff cannot recover from a defendant under tort theories if the parties have a contract, to the extent that the damages were caused by a breach of contract.\n\nSome states have begun to carve out exceptions to the Economic Loss Rule for building code violations. \n\nA case decided by the Oregon Court of Appeals, Abraham v. T. Henry Construction Inc., is a good example. 230 Or. App. 564, 217 P.3d 212 (2009).\n\nTypically, the economic loss doctrine will prohibit a tort claim between contracting parties when the claim arises out of a failure to perform contractual obligations. In other words, since negligence is a duty/care claim, one party must breach a standard of care….not simply a contractual obligation.\n\nThe plaintiffs in Abraham argued, however, that the contractors had breached a standard of care because it had violated the Oregon Building Code. The Oregon Court of Appeals agreed that the Oregon Building Code did create a standard of care, and allowed the claim of negligence to proceed.\n\n
- Introduction\n
- California has a green building code.\n\nDC has the green building act (talk about performance bond issues. It is required, but no one offers it). DC Green Building Act adopts LEED Standards...\n\n\n
- These green building cases present unique damages issues. \n
- These green building cases present unique damages issues. \n
- These green building cases present unique damages issues. \n
- These green building cases present unique damages issues. \n
- Before talking about the specific (green building litigation), it’s important to get a grasp on general construction litigation...and what causes this type of litigation.\n
- Generally, litigation arises because of unfulfilled expectations.\n
- Generally, litigation arises because of unfulfilled expectations.\n
- Generally, litigation arises because of unfulfilled expectations.\n
- Generally, litigation arises because of unfulfilled expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- Generally, litigation arises because of unfulfilled expectations. The same thing for LEED or other green building projects...its just different expectations.\n
- These green building cases present unique damages issues. \n
- \n
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