You decide to build your dream house. You check on builders in the area and one builder receives rave reviews. You sign his standard form contract where the builder agrees to build the house according to “good building practices.” The house is built and is everything that you hoped for – and more.
After you move in during the dry summer, the winter rains come. Your windows leak and water spots appear on your walls. The builder tries to fix the problems, but nothing works. So, you bring in another contractor to look at the problem. To quote that great American folk hero – SURPRISE, SURPRISE, SURPRISE. The house does not have flashing and the brick veneer does not have weepholes. If it did, you would not have any of these problems. AND, these are by the local Building Code.
This case is a no-brainer – a classic breach of contract case. WRONG!
In Tennessee, the building codes are enforced by the codes officials. The consumer has no right to sue to enforce those codes even though the consumer is the one intended to be protected.
To add insult to injury, unless your contract required the house to be built in strict compliance with the building codes, the builder did not breach the contract. The term “good building practices” means the practices that prevail in the community. In this community, the codes officials did not require weepholes and flashing, even though their own code required those items. And, builders customarily did not build houses with weepholes and flashing because the codes officials did not require it.
So, you are the owner now have your dreamhouse with some problems. Oh, by the way, now that you know that the house does not comply with the building codes, you must disclose that fact when you sell the house under the Tennessee Residential Disclosure Act.
THE MORAL OF THIS STORY: NEVER RELY ON GOVERNMENT OFFICIALS TO DO THEIR JOB.
For more on this story, see Wilkes v. Shaw Enterprises, LLC, Case No. M2010-00105-COA-R3-CV (Tenn. Ct. App. May 4, 2011).
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