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The absence of a building code violation does not translate to the absence of a construction defect.

April 1, 2016
Hazaray v. Estates at Bordens Crossing, LLC, 2016 N.J. Super. Unpub. LEXIS 239 (App. Div. 2016)

The Appellate Division ruled that the developer and general contractor were liable for violations of the Consumer Fraud Act despite not violating a single, applicable building code. In knowingly building a garage that was insufficiently sized to fit average-sized vehicles, the developer was liable for consumer fraud for failing to disclose a material construction defect. Estates at Bordens Crossing was the developer of model, constructed homes within a residential development. In an effort to save money and lower the sales price, EBC moved the location of the two-car garage from the side of the building to the front. In doing so, EBC’s garage design changed and effectively eliminated three-and-one-half feet of usable garage space. An average-sized vehicle could not longer fit within the garage. It was determined that EBC was aware of this fact but still marketed and sold the model home with a “two-car” garage. The Appellate Division affirmed the trial court’s verdict that EBC violated the Consumer Fraud Act when it sold five model homes with front-facing garages and failed to disclose to the buyers that the garages could not be used for their intended purpose. The Appellate Division rejected EBC’s argument that the local building codes do not identify a specific length for garages and, thus, the building design and construction did not violate any building codes or regulations. The Appellate Division ruled that the absence of a building code violation did not translate to the absence of a construction defect. Rather, the model homes contained construction defects because the garages were clearly too small for their intended and marketed use.

 

Case Law Alerts, 2nd Quarter, April 1, 2016

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