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BUILDING CODE AND CONSTRUCTION CONTRACT INTERACTION

 

As outlined in previous posts (found HERE, HERE, and HERE) on the subject, developing and completing a construction project can be a daunting task.   In the modern world, seeing a construction project through to completion often requires dozens of people, government regulations, construction personnel, an architect, and other professionals with permits, licenses, designs, and contracts.  All of the parties involved need to be informed of the intricacies in building codes, city ordinances, and zoning laws with their applicable regulations.  These guidelines often vary from community to community.

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The definition provided in the International Building Code (“IBC”), identifies that the purpose of the building code is to establish the minimum requirements necessary to ensure public health, safety and general welfare through structural strength, means of egress, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire and other hazards.[1]  However, these minimum requirements can lead to conflict and confusion between differing building codes, contract specifications, and significant differences in the directives of the owner, architect and engineer.   In addition, these conflicts lead to questions of who is responsible when a code violation occurs.  The following will discuss these issues in greater detail.

Conflicts Between the Construction Contract and Building Codes

Often the requirements outlined in a contract between the owner/developer and contractor may differ from the guidelines found in a building code.  In addition, conflicts between building codes may occasionally occur.  A contractor must be aware of how these contractual requirements differ from the code and what specifications will apply during construction.  In addition, the contractor will need to be aware of the importance of interpretation when building or other codes may interfere with or even contradict each other.

            A contractor’s fundamental obligation is to follow the plans and specifications provided by the owner of the property and their architect.[2]  In addition, compliance with the specifications contract may also provide protection for the contractor if allegations arise in the future concerning the design or construction of the project.

            To the extent a particular construction method or material outlined in contract specifications is not covered in the Code, it is still permissible to build utilizing these materials or methods.[3]  In order to protect the contractor and other parties involved, the alternative method or material must be approved by the applicable agency or governing board.[4]  The International Building Code provides for this option when it directs that an alternative material design or method of construction “shall be approved where the building official finds that the proposed design is satisfactory and complies with the intent of the provisions of the code” and the material, method, or work offered is for the purpose intended (or at least the equivalent to) the material or method prescribed in the building code in quality, strength, effectiveness, fire resistance, durability, and safety.[5]

The contractor should keep in mind that adherence to the contract terms, plans, and specifications provided by the owner and its representatives provides protection to the contractor both from allegations of breach of contract, defective work, and the negative impact of Code violations.  The architect has a duty and is required to make certain in his/her design that the construction specifications and materials, at a minimum, comply with the applicable codes and regulations.[6]  Reliance by the contractor on these designs and specifications provides defenses against future allegations brought by an owner for a failure by the contractor to comply with the specific building code.

This approach may not only protect the contractor from future breach of contract allegations by an owner, but also from the potential of sanctions imposed by the Arizona Registrar of Contractors.  Although not a perfect defense (and entirely within the prosecutorial discretion of the agency) the Arizona Registrar of Contractors may choose not to impose discipline on a contractor for building in violation of a building code as long as it can be demonstrated by the contractor that the owner consented to the deviation.[7]   At a minimum, the fact that owner knowingly consented to a deviation may be utilized by the contractor as a mitigating factor to minimize the potential punishment imposed by the Registrar of Contractors.

Conflicts Between Code Provisions

Often, a builder faces code provisions and other regulations which are in conflict with one another.  This situation typically occurs among the interplay between local, state, and federal rules/regulations which govern similar areas of building and construction.  When a conflict of provisions occurs, as outlined by the IBC, the most restrictive code provision will govern.[8]  This issue becomes particularly relevant when individual jurisdictions incorporate specialty codes that are not part of the uniform code.  One common example of a specialty code in use in Arizona is the Pima County code for construction of adobe structures.[9]  This specialty building code was added to the Pima County building code to address the prevalence of adobe structures in Pima County and to give heed to the special considerations required in order to successfully build with this material.[10]  Hence, the requirements of the adobe portion of the code conflict with or vary from the traditional requirements in the masonry portion of the building code.  The contractor, and its representatives, will need to pay close attention to what portions of the code govern and where deviation is permitted for each project. 

            To the extent a building code conflicts with a federal, state, or local law, the state or local law will typically control.[11]  Remember that conflicting federal, state, or local laws can effectively evolve into an independent and unique building code.  For example, the accessibility requirements within the federal Americans with Disabilities Act may create obligations to the owner/developer and the contractor that are not necessarily reflected in the applicable municipal building code.[12]  However, the owner/developer or its representatives and the contractor must keep these requirements in mind while designing and constructing a structure.  Failure to do so, could lead to substantial damages for the parties.[13] 

No matter what scenarios and interplay between code provisions that might be in play, it is essential that an owner, contractor, and design professional be familiar with the potential conflicts between separate statutes, codes, and regulations which impact the design and/or construction of structures in Arizona. 

[1] IBC § 101.3.

[2] See, e.g., Hammond v. Lowes’ Home Centers, Inc., 316 F. Supp. 2d 975 (D. Kan. 2004) (contracting parties are free to provide more contractual protection than the law requires).

[3] IBC § 104.11.

[4] Id.

[5] Id.

[6] The duty of an Architect will be discussed in greater detail in Section V below.

[7] A.R.S. § 32-1154.

[8] IBC § 102.1.

[9] See Generally, §§ 7101.01 to 7106.4 Uniform Administrative Code Amendment Tucson/Pinal County

[10] Id.

[11] IBC § 102.2.

[12] 42 U.S.C. § 12101.

[13] For a local example, many jurisdictions in Arizona utilize the Maricopa Association of Governments Specifications (often referred to as the “MAG Specs”).  Provisions of the MAG Specs may conflict with the applicable building codes. 

© 2016 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.