§4.1Introduction

 

There is a wide variety of Illinois statutes that affect the construction industry. The following focuses on statutes, not otherwise covered in this book, which have wide-spread and significant affect on construction activity between owners and contractors.

 

§4.2 Consumer Fraud and Deceptive Practices Act

 

The statute which has the greatest and most far-reaching affect on the relationship of contractors to consumers is the Consumer Fraud and Deceptive Practices Act, ("CFDPA").[1] The Illinois legislature has enacted the CFDPA to further protect consumers from fraudulent conduct in a wide variety of business settings. The CFDPA is a far reaching consumer protection statute devised to regulate the manner in which various businesses from a variety of industries may contract for services with consumers. Residential contractors are therefore bound by this law since they engage in business contracts with homeowners when they contract to remodel or repair residences.

 

§4.3 Who it covers – can a business be a covered consumer

 

While the CFDPA was specifically enacted to protect consumers from fraudulent business conduct, the Act has been extended by Illinois courts to include business to business transactions.[2] Thus the Act protects businesses who purchase products as consumers or services for their own end use. [3]

 

The Act also protects businesses when the complained of conduct "involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns." [4] In Downers Grove Volkswagen, Inc. v. Wigglesworth Imports, Inc., the Second District noted the CFDPA applied in a dispute between two automobile dealerships who were not consumers of each others products or services. In Downers Grove, the defendant allegedly distributed 15,000 brochures to individual consumers with alleged false statements regarding the plaintiff's business practices.[5] The court held that businesses can sue under the CFDPA, when another business deceives customers and injures their competitiveness.[6]

 

However, in Lake County Grading Company of Libertyville, Inc. v. Advance Mechanical Contractors, Inc.,[7] it was held that the CFDPA did not apply to a dispute between a construction subcontractor and contractor over extra work costs on a sewer line since the complaint did not implicate consumer protection concerns.[8] The Illinois Appellate Court, Second District ruled that the dispute between the two construction companies was merely for breach of their contract and that the two companies were not consumers of each other's goods or services.[9] The court reasoned that where there is a dispute between two businesses that are not consumers, the test is "whether the alleged (fraudulent) conduct involves trade practices addressed to the market generally or otherwise implicates consumer protection concerns."[10] Therefore, the court found no consumer interests in a construction contract between a general contractor and its subcontractor.[11]

 

Similarly, in Direct Communications v. Horizon Retail Construction, Inc., the United States District Court for the Northern District of Illinois ruled that a CFDPA claim by a business requires a showing by the plaintiff of a consumer nexus.[12] In Direct, a retailer sued a general contractor under the Act alleging the general contractor knew at the time it entered a construction contract with Direct that it could not fulfill its contract requirements. [13]Direct alleged it did not need to comply with consumer protection concerns since it was a consumer of Horizon's contractor services.[14] However, the court citing Lake County Grading reasoned that this would turn every common business dispute into a violation of the CFDPA which was not the intent of the Act. Therefore, a business must show a deceptive practice directed to the market generally or one that implicated consumer protection concerns to have a claim under the Act.[15]

 

§4.4 What are violations of the Act - Deceptive practices – Section 2

 

The CFDPA seeks to restrain and prohibit unfair methods of competition and unfair or deceptive acts including the use of fraud, deception, false promise or pretense, misrepresentation or concealment, suppression or omission of material facts in the conduct of any trade or commerce specifically dealing with consumers.[16]

 

Generally, to prevail on a CFDPA claim a plaintiff must show: (1) a deceptive act or practice by the defendant; (2) defendant's intent that the plaintiff rely on the deception; (3) an occurrence of deception in the course of conduct involving trade or commerce; (4) actual damages to the plaintiff ; and (5) proof that the damages were caused by the deceptive act or acts.[17] Unlike common law fraud where an intent to defraud is required, under the CFPDA innocent misrepresentations may be actionable.[18]

 

In Falcon Associates, Inc. v. Cox, a homebuilder – vendor was potentially liable to the purchasers of a home where the purchasers relied on the quality of his model homes as to what they were purchasing.[19] This was true even if the defendant did not intend to deceive them. Once the purchasers took possession of the home they encountered all kinds of construction problems including wind blowing through their home when all the doors and windows were closed, the home not having R-19 insulation like the model home, and the roof needing complete replacement.[20] The defendant claimed they never intentionally deceived anyone, they attempted to correct the problems with the home and that this was merely a breach of contract action.[21] The Fifth District court ruled that innocent misrepresentations may be actionable.[22] The buyer did not need to show the seller intended to deceive, but must show the seller intended the buyer to rely on some act or representation.[23] In this case the court found that seller intended for the buyers to rely on the construction quality of the model home and his promise of R-19 insulation throughout most of the home and thus the requirement of intent was established.[24]

 

In the Second District, the Attorney General filed a CFPDA claim for shoddy work performed on a consumers residence by a plumbing, heating and air conditioning business. In People ex rel. Hartigan v. Knecht Services, the contractor was accused of engaging in unfair and deceptive practices with respect to their advertising, servicing and charging of customers for plumbing. heating and air conditioning services.[25] The contractor placed a yellow pages advertisement that stated "HONESTY AND MINIMUM CHARGE IS OUR POLICY" in the plumbing contractor's section of the phone book.[26] Evidence showed the contractor used untrained servicemen, performed work in an unworkmanlike manner, used intimidation to collect payment, performed unnecessary repairs, charged for the work of two servicemen when only one performed and excessively charged consumers.[27] The court ruled in plaintiff's favor reasoning the contractors advertisements were far from accurate.[28] Knecht had no licensed plumbers, either employees or officers, yet represented his employees as qualified to perform the work.[29] Its statement as to "minimum charges" created a misunderstanding as to how much would be charged for their services and was therefore deceptive.[30]

 

Another instance where the Attorney General sued a home remodeling company is People ex rel. Hartigan v. All American and Construction Co, Inc.[31] In All American, the Attorney General sued the corporate officers of the home remodeling company alleging CFDPA violations.[32] They were sued in their corporate capacity since the company officers managed, condoned, controlled and directed deceptive business practices of the company.[33] The deceptive practices included ignoring four different consumers' complaints regarding warranty defects and performing contract work in an unworkmanlike manner.[34] The Court ruled that the Attorney General stated a cause of action under the Act by alleging the corporation was negligent in performing its work and failed to remedy the defects. The court found that the complaint need not allege the underlying facts of each occasion.[35]

 

The Illinois Supreme Court held that the Attorney General has standing to bring CFDPA claims against public contractors for allegedly defrauding governmental agencies.[36] The Attorney General's complaint must set forth specific facts that the public contractor intended the governmental agencies to rely on misrepresentations of a material fact in the conduct of the contractor's trade or commerce. [37] Thus in E & E Hauling, Inc., the Attorney General was allowed to prosecute public contractors due to their misrepresentations concerning compliance with minority and women business enterprise provisions of their government contracts. [38]

 

Even if there is a deception, the consumer must prove that the deception caused the injury for there to be an actionable claim under the Act. In Zankle v. Queen Anne Landscaping, the Second District court found that a landscaping contractor, who promised to use a "rock picker" to find and remove rocks from a consumer's lawn, failed to remove three tons of rocks that were removed by a completion contractor.[39] Although the consumer alleged the original landscaper lied and was deceptive in promising to use the "rock picker", the court found that the original contractor was only liable for a breach of contract and not a violation of the CFDPA.[40] The court held that since the completion contractor also did not use a "rock picker", yet still managed to remove three tons of rock and otherwise performed satisfactorily, that the deception did not proximately cause plaintiff's injury.[41] The court stated, "what the plaintiff calls "consumer fraud" or "deception" is merely defendants failure to abide by their contractual obligations."[42]

 

In Notaro Homes, Inc. v. Chicago Title Insurance Company, a developer unsuccessfully sued a title company for failure to apprise the developer of changes in local zoning amendments that effectively denied the developer the opportunity to build a residential building as it intended.[43] The developer sued the title company alleging, among other claims, that the title company violated the CFDPA for failure to disclose new recorded amendments against the property in its title policy.[44] In ruling against the developer on the CFDPA claim, the court reasoned that the developer was a sophisticated business and could have checked with the local governing authority as to new encumbrances placed on its property.[45] The court stated the title company's failure to disclose was an omission of law discoverable by the plaintiff and not an omission of material fact.[46] Therefore, the title company did not violate the Act.[47]

In Kunkel vs. P. K. Dependable Construction, LLC, the Fifth District held that a roofing contractor's failure to provide a consumer-rights brochure to the homeowner did not grant the homeowner a private right of action under the CFDPA, since the homeowners failed to show how they were damaged by not receiving the consumer-rights brochure.[48] The Court ruled to prove a private right of action under Section 10A of the CFPDA, the Plaintiff must show actual damages. [49]

 

§4.5 Contract signed at consumer's residence – Right of Rescission Section 2B

 

If there is a sale of merchandise valued at $25 or more made under a written contract by a seller to a consumer at the consumer's residence then pursuant to the CFDPA, that consumer has three full business days after signing the contract in which to void the contract by notifying the seller and returning the merchandise.[50] The seller is required to give a receipt or contact to the purchaser at the time of signing.[51] The contract has to contain a "Notice of Cancellation" on the contract which must include the following language:

 

"YOU, THE CONSUMER MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT."[52]

 

Per the CFDPA, a Notice of Cancellation also needs to be attached to the receipt or contract. [53] The Notice of Cancellation needs to be presented to the consumer in the following form:

 

NOTICE OF CANCELLATION

(enter date of transaction)

................

(Date)

YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN 3 BUSINESS DAYS FROM THE ABOVE DATE.

 

IF YOU CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU UNDER THE CONTRACT OR TRANSACTION WILL BE RETURNED WITHIN 10 BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.

 

IF YOU CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER AT YOUR RESIDENCE IN SUBSTANTIALLY AS GOOD A CONDITION AS WHEN RECEIVED, ANY GOODS DELIVERED TO YOU UNDER THIS CONTRACT OR TRANSACTION, OR YOU MAY IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE GOODS AT THE SELLER'S EXPENSE AND RISK.

 

IF YOU MAKE THE GOODS AVAILABLE TO THE SELLER AND THE SELLER DOES NOT PICK THEM UP WITHIN 20 DAYS OF THE DATE OF YOUR NOTICE OF CANCELLATION, YOU MAY RETAIN OR DISPOSE OF THE GOODS WITHOUT ANY FURTHER OBLIGATION. IF YOU FAIL TO MAKE THE GOODS AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE GOODS TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.

 

TO CANCEL THIS TRANSACTION, MAIL OR DELIVER A SIGNED AND DATED COPYOF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM, TO (Name of seller), AT (address of seller's place of business) NOT LATER THAN MIDNIGHT OF (date).

 

I HEREBY CANCEL THIS TRANSACTION.

 

(Date)

 

(Buyer's signature) [54]

 

The three day period does not start until the consumer is given a "Notice of Cancellation". If the consumer sends notice as prescribed, then the seller must return the full amount of any payments made.[55]

 

It would be unlawful for a seller to: (a) fail to complete the contact information in the "Notice of Cancellation";[56] (b) include in the contract waivers of the right to cancel;[57] (c) fail to tell the consumer at the time of signing the contract of their right to cancel within three days;[58] (d) misrepresent the consumers right to cancel;[59] (e) use coercion to interfere with the consumer's rights under the CFDPA;[60] (f) fail to honor a notice of cancellation within 10 days and fail to refund payments made by the consumer, return goods traded in, in substantially the same condition as when received by the person, and cancel and return any negotiable instruments tendered by the consumer under the contract;[61] (g) sell the consumer's debt to a collection agency prior to midnight of the fifth business day following the day the contract was signed or the goods or services were received;[62] or (h) fail to notify the consumer within ten days of receiving notice of cancellation, whether the seller intends to repossess the goods.[63]

 

The CFDPA does not apply to transactions which are made by a consumer: (a) visiting a retail establishment; (b) under the Consumer Credit Protection Act; (c) where the consumer initiated contact to meet a bona fide personal emergency; (d) entirely over the telephone or mail; (e) who initiated the contact and invited the seller to his residence; (f) that apply to sales or rental of real property, sales of insurance or commodities; and (g) with a loan broker where the consumer made first contact with the broker.[64]

 

§4.6 Non-English language transaction; contracts – Section 2N

 

If a person conducts a business transaction, in a language other than English, and uses an interpreter in discussing the terms and condition of the contract, the retailer must have the consumer and interpreter sign the following forms:[65]

 

I, (name of consumer), used (name of interpreter) to act as my interpreter during this retail transaction or these negotiations. The obligations of the contract or other written agreement were explained to me in my native language by the interpreter. I understand the contract or other written agreement.

 

(signature of consumer)

 

(relationship of interpreter to consumer)

 

I, (name of interpreter), acted as an interpreter during this retail transaction of these negotiations. The obligations of the contract or other written agreement were explained to (name of consumer) in the consumer's native language. I understand the contract or other written agreement.

 

(signature of interpreter)

 

(relationship of interpreter to consumer)[66]

 

Similarly, if a transaction is conducted in a language other than English, and results in a written contract, and the retailer or one of its employees acted as an interpreter, the retailer must have the consumer sign the following form in the consumer's native language:[67]

 

This retail transaction or these negotiations were conducted in (language), which is my native language. I voluntarily choose to have the retailer act as my interpreter during the negotiations. The obligations of the contract or other written agreement were explained to me in my native language. I understand the contract or other written agreement.

 

(signature of consumer) (signature of retailer)[68]

 

The CFDPA specifically excludes realtors and credit card transactions but not mortgage brokers who often sell residential mortgages to Spanish speaking consumers.[69] There may be possible CFDPA actions against mortgage brokers or lenders who fail to follow these mandatory procedures, although lenders will probably argue that their residential loans are not "retail transactions" and attempt to bypass these foreign language requirements of the CFDPA.[70]

 

§4.7 Notification of change in name and refusal to commence or complete work - Section 2Q

 

The CFDPA specifically targets unscrupulous residential contractors by requiring that any person or company in the business of making home improvements or repairs shall operate their business under their real name, assumed corporate name under the Business Corporation Act of 1983 or an assumed business name under the Assumed Business Name Act..[71] Violations of this requirement shall expose the offending party to a possible criminal charges of at least a Class A misdemeanor.[72]

 

If a business does home repair, and has entered into a contract for home repair with a consumer, he or she must notify the consumer of any changes in its business name or an address change within 10 days after the change in address or name.[73]

 

If a business does home repair, and fails to start or complete work under a contract, then it must return the down payment and any additional payments made by the consumer or its agents within 10 days after a written demand is made by certified mail.[74] From the plain reading of the statute this suggests that even if a remodeling job was ninety percent complete and the contractor failed to complete the work, the contractor would need to return all monies paid including the deposit if the consumer properly made its demand under the statute.

 

However, a recent case in the Fifth District held that a roofing contractor that installed a defective roof on a home did not violate the CFDPA because the contractor attempted to correct the defective work numerous times. The Court reasoned that to do otherwise would convert every claim for defective work into a consumer fraud case, which the legislature did not intend. [75] The Court also held that the claim failed to violate the CFDPA because the homeowners failed to offer any evidence that they sent a written demand for refund by certified mail as the statute requires. [76]

 

§4.8 Damages for failure to comply

 

The CFDPA allows for private rights of action for any person who suffers actual damages under the Act.[77] The court may, in its discretion, award any other relief it deems proper.[78] Courts may award compensatory and punitive damages for violations of the CFDPA.

 

In Borcherding v. Anderson Remodeling Company, Inc., the Second District court reaffirmed default judgements for compensatory and punitive damages against a renovation contractor and denied the contractor's petition for relief from judgement.[79] The court ruled that a renovation contractor's willful and false statements that it was a reputable and reliable company combined with a homeowner's reliance on these statements, which resulted in damages to the homeowners, was sufficient to plead a violation of the CFDPA.[80] On a motion for default judgement, the trial court entered judgement against the defendants for $5,600 in compensatory damages, $18,000 in punitive damages and $2,000 in attorneys fees.[81] Although the defendants attempted to void the judgment, the appellate court found the contractor failed to properly and diligently petition for leave to vacate the judgment and the award by the trial court was not overturned.[82] Clearly, this case stands for the proposition that courts will award compensatory and punitive damages on a CFDPA claim and defendants must always diligently defend themselves.

 

In Ekl v. Knecht,[83] another Second District court allowed compensatory damages of $307 and punitive damages of $4,700 against a residential plumbing contractor for violating the CFDPA. Before negotiating an actual price to repair a blocked pipe in the plaintiff's home, the contractor repaired a blocked pipe in the consumer's home. When the consumer objected to the amount charged,[84] the contractor threatened to undue the work that was done and also threatened to turn off her water supply.[85] The court awarded punitive damages against the contractor based on the threats to the consumer.[86] The court found the contractor deprived the consumer of her bargaining power and forced her to pay an unreasonable price by his unconscionable and unlawful threats.[87] The court set forth three factors to determine whether the contractors actions were unfair under the Act:

 

(1)               whether the practice even if not unlawful offends public policy as established by statutes, the common law or otherwise;

(2)               whether it is immoral, unethical, oppressive or unscrupulous; and

(3)               whether it results in substantial injury to consumers.[88]

 

Consequential damages may be waived on a CFDPA claim in a dispute between two businesses as long as the waiver was not unconscionable. In Lefebure Intergraphics v. Sanden Machine Limited,[89] plaintiff sued a printing press manufacturer for misrepresentations under the Act. Plaintiff sued for lost profits and consequential damages. The manufacturer raised the waiver of consequential damages contained in the purchase contract as a defense.[90] The United States District Court for the Northern District of Illinois held that a consequential claim waiver between sophisticated businesses was not unconscionable. The businesses were free to contract and determine the scope of the remedy between them. Therefore the court upheld the waiver of consequential damages and dismissed the claims of plaintiff for lost profits and consequential damages.

 

The CFDPA provides for harsh civil penalties to those who violate the CFDPA's provisions. Specifically, the Act allows the Attorney General or State's Attorney the power to prosecute any suspected violators in the name of the People of the State.[91] Preliminary or permanent injunctive power is allowed by the State against violators.[92] Among other remedies the Act allows for restitution against the harmed parties[93] and allows the State prosecutors to claim civil penalties for $50,000 against any person found by the Court to have engaged in prohibited acts.[94] If an intent to defraud is determined to have been perpetrated by the offender then the Act allows for a penalty of $50,000 per violation.[95]

 

In addition to the above, if the offender is found to have acted against a person 65 years of age or older , courts may impose additional penalties of $50,000 for each violation.[96] To determine the amount of penalties for violations against persons 65 years of age or older the courts consider whether : (1) defendant's conduct was willful;(2) whether the defendant knew or should have known his conduct was directed against someone 65 years of age or older and (3) whether the person 65 years of age or older was more vulnerable to defendant's conduct due to his/ her age, poor health and infirmity.[97]

 

§4.8.1 Liability for attorneys fees

 

The CFDPA allows for the recovery of reasonable attorney's fees and costs to the prevailing party in a suit brought under the CFDPA.[98]

 

The Act provides that the court may award the prevailing party its attorneys' fees. However, in Krautsack v. Anderson,[99] the Illinois Supreme Court ruled that a trial court must make a threshold finding of bad faith by the plaintiff to award a prevailing defendant attorney's fees under the Act.[100] The purpose being to deter bad-faith conduct by a plaintiff and to reimburse a defendant if that happens.[101] The same court stated a trial court need not make a threshold finding of bad faith to award attorney's fees to a prevailing plaintiff.[102] The logic being consumers would be discouraged from bringing suit for consumer fraud if their recovery was consumed by attorney's fees or their damages were insubstantial.[103] The court ruled that an award of attorney's fees is discretionary by the trial court and not mandatory.[104]

 

Factors that the courts look to in awarding attorneys' fees include:

 

(1)   the degree of the opposing party's culpability or bad faith;

(2)   the ability of the opposing party to satisfy an award of fees;

(3)   whether an award of fees against the opposing party would deter others from acting under similar circumstances;

(4)   whether the party requesting fees sought to benefit all consumers or businesses or to resolve a significant legal question regarding the Act; and

(5)   the relative merits of the parties' positions[105]

 

The statutory remedies for payment of reasonable attorneys fees allowed by the CFDPA have been incorporated into the Home Repair and Remodeling Act, as well.[106]

 

Thus, upon prevailing, a consumer plaintiff is normally awarded attorneys' fees. Attorneys' fees have even been awarded in cases where there were innocent misrepresentations of fact made by the defendant.[107] However, the court has discretion to deny attorneys fees where factors indicate otherwise. Thus, a plaintiff who obtained a large punitive damage award was denied attorneys fees.[108] Also, fees have been denied when the defendant's violation of the Act was technical rather than willful or in bad faith.[109]

 

§4.9 The Home Repair and Remodeling Act

 

The Home Repair and Remodeling Act ("HRRA") was enacted to safeguard residential consumers and reduce the likelihood of disputes by requiring improved communication and accurate representations by contractors.[110] HRRA was also enacted to safeguard residential consumers against unscrupulous contractors.[111] Typically these contractors prey on senior citizens or unsophisticated consumers who are not savvy with construction contracts.[112]

 

§4.10 Who and what it covers

 

The HRRA covers those contractors who fix, replace, alter, convert, modernize, improve, or make additions to any residential property.[113] The contractor can be an individual, partnership, corporation, business or other legal entity.[114] The HRRA covers work such as construction, installation, replacement or improvement of swimming pools, basements, chimneys, garages, fences, heating and cooling systems, furnaces and boilers, windows and roofs and the like.[115] It does not include work such as sale, installation, cleaning and repair of carpets, any work dealing with home appliances such as disposals, refrigerator, ranges, washing machines, hot water heaters and the like, if the person replacing, installing, repairing, or connecting the appliances is an employee or agent of the merchant who sold the item to the homeowner.[116] HRRA is silent whether it applies to contractors who repair such appliances, but are not an employee or agent of the merchant who sold the item to the homeowner.

 

In Central Illinois Electrical Services, LLC v. Slepian,[117] the homeowner hired an electrical contractor pursuant to an oral contract to complete the work of the previous contractor terminated from the job. There was evidence that the homeowner did not provide the contractor with architectural plans or specifications. There also was evidence that the homeowner made several payments to the contractor for its time and material. The contractor argued that HRRA should not apply, since it was not the original contractor but merely a completion contractor. The contractor also argued the scope of the work was undetermined and it agreed to work on a time and material basis. Therefore, it contended, it was impossible to prepare a written contract in compliance with HRRA that estimated the price with "reasonable particularity". The court ruled first that HRRA contained no exception for completion contractors. Second, the court held that there is no exception for projects billed on a time and material basis.[118] Since the court found a violation of HRRA, the contract between the parties was nullified and the judgment in favor of plaintiff for a mechanics lien was reversed.[119] A prerequisite of a mechanics lien is an enforceable contract.[120]

 

In MD Electrical Contractors, Inc. v. Abrams,[121] the court found that HRRA only required compliance with the Act by the party contracting directly with the owner and not by the original contractor's subcontractors.

 

Under the HRRA, a residence means a single-family home or dwelling or multi-family home containing 6 or fewer apartments, condominiums, townhouses, used or intended to be used by occupants as dwelling places.[122] The HRRA does not apply to new construction of single family homes nor any multi-family residences or repairs to units with more than 6 apartments or dwelling units.[123]

 

§4.11 Written contracts

 

To determine whether the contractor is a subcontractor not covered by HHR or a general contractor covered by the Act, the court will look at nature of the relationship. Thus in Smith v Bogard [124], the contractor argued that he was a subcontractor and thus not covered by HRRA. The court, however, found that he performed a variety of general construction duties, was not employed for specific limited duties, and communicated directly with the owner. Therefore the court held that the contractor was a person covered by HRRA. [125]

 

Prior to initiating home repair or remodeling, the HRRA requires the contractor to provide a written contract to the consumer for any work valued at over $1,000.[126] The contractor must include in the contract the total cost, any charges to provide a construction estimate, and costs for parts and materials.[127] The business name and street address of the contractor must appear on the contract.[128] Also, if the contractor uses a post office box then the contract must list the contractor's home address.[129]

 

§4.12 Consumer Rights Brochure

 

For contracts over $1,000 value, the contractor must provide a consumer rights brochure to the homeowner prior to starting any repair or remodeling work.[130] The brochure is labeled as "Home Repair: Know Your Consumer Rights."[131] and both the contractor and homeowner need to sign and date receipt of the brochure. The contents of the consumer rights brochure is listed specifically as:

 

HOME REPAIR: KNOW YOUR CONSUMER RIGHTS

 

As you plan for your home repair/improvement project, it is important to ask the right questions in order to protect your investment. The tips in this fact sheet should allow you to protect yourself and minimize the possibility that a misunderstanding may occur.

 

AVOIDING HOME REPAIR FRAUD

 

Please use extreme caution when confronted with the following warning signs of a potential scam:

 

(1)               Door –to-door salespersons with no local connections who offer to do home repair work for substantially less than the market price.

 

(2)               Solicitations for repair work from a company that lists only a telephone number or a post-office box number to contact, particularly if it is an out-of-state company.

 

(3)               Contractors who fail to provide customer references when requested.

 

(4)               Persons offering to inspect your home for free. Do not admit anyone into your home unless he or she can present authentic identification establishing his or her business status. When in doubt, do not hesitate to call the worker's employer to verify his or her identity.

 

(5)               Contractors demanding cash payment for a job or who ask you to make a check payable to a person other than the owner or company name.

 

(6)               Offers from a contractor to drive you to the bank to withdraw funds to pay for the work

 

CONTRACTS

 

(1)               Get all estimates in writing.

 

(2)               Do not be induced into signing a contract by high-pressure sales tactics.

 

(3)               Never sign a contract with blank spaces or one you do not fully understand. If you are taking out a loan to finance the work, do not sign the contract before your lender approves the loan.

 

(4)               Remember, you have 3 business days from the time you sign your contract to cancel any contract if the sale is made at your home. The contractor cannot deprive you of this right by initiating work, selling your contract to a lender or any other tactic.

 

(5)               If the contractor does business under a name other than the contractor's real name, the business must either be incorporated or registered under the Assumed Business Name Act. Check with the Secretary of State to see if the business is incorporated or with the county clerk to see if the business has registered under the Assumed Business Name Act.

 

(6)               Homeowners should check with local and county units of government to determine if permits or inspections are required.

 

(7)               Determine whether the contractor will guarantee his or her work and products.

 

(8)               Determine whether the contractor has the proper insurance.

 

(9)               Do not sign a certificate of completion or make a final payment until the work is done to your satisfaction.

 

(10)           Remember, homeowners should know who provides supplies and labor for any work performed on your home. Suppliers and subcontractors have a right to file a lien against your property if the general contractor fails to pay them. To protect your property, request lien waivers from the general contractor.

 

BASIC TERMS TO BE INCLUDED IN A CONTRACT

 

(1)               Contractor's full name, address, and telephone number. Illinois law

requires that persons selling home repair and improvement services provide their customers with notice of any change to their business name or address that comes about prior to the agreed dates for beginning or completing the work.

 

(2)               A description of the work to be performed.

 

(3)               Starting and estimated completion dates.

 

(4)               Total cost of work to be performed.

 

(5)               Schedule and method of payment, including down payment, subsequent payments, and final payment.

 

(6)               A provision stating the grounds for termination of the contract by either party. However, the homeowner must pay the contractor for work completed. If the contractor fails to commence or complete the work within the contracted time period, the homeowner may cancel and may be entitled to a refund of any down payment or other payments made toward the work, upon written demand by certified mail

 

Homeowners should obtain a copy of the signed contract and keep it in a safe place for reference as needed.

 

IF YOU THINK YOU HAVE BEEN DEFRAUDED OR YOU HAVE QUESTIONS

 

If you think you have been defrauded by a contractor or have questions, please bring it to the attention of your State's Attorney or the Illinois Attorney General's Office. Attorney General Toll-Free Numbers

 

Carbondale (800) 243-0607

Springfield (800) 243-0618

 

 

§4.13 Insurance required

 

The HRRA places several mandatory insurance requirements on the contractor who works in the area of home repair and remodeling. Those requirements include obtaining and maintaining during the operation of its business:

 

a)      Public liability and property damage insurance of $100,000 per person and $300,000 per occurrence of bodily insurance

b)      $50,000 per occurrence for property damage and

c)      $10,000 per occurrence for improper home repair / remodeling not in conformance with applicable building codes[133]

 

The previous insurance requirements do not apply if the contractor has a net worth of $1,000,000, based on a previous financial statement prepared within 13 months.[134] Bona fide millionaires, therefore, do not have to comply with the HRRA insurance requirements.

 

§4.14 Unlawful acts

 

The HRRA makes it unlawful for any contractor to engage in home repair or remodeling without first obtaining a signed written contract or work order for work over $1,000 in value.[135]

 

It is also unlawful for the contract to include an arbitration clause or a waiver of the right to a jury trial, unless the consumer signs, his or her name, indicating an acceptance or rejection of each provision next to each of these clauses. [136]

 

 

§4.15 Enforcement, Damages, and Attorneys Fees

 

Violations of the HRRA leave a contractor exposed to prosecution by the Attorney General or State's Attorney of any county where the home repair or remodeling violations occurred to restrain and prevent any pattern or practice of violating HRRA.[137] A violation of the HRRA is also construed to be a violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act), which would leave the offending contractor subject to exposure for attorney's fees and damages via the Consumer Fraud and Deceptive Business Practices Act provisions.[138]

 

The Consumer Fraud Act incorporates any violation of HRRA as a violation of the Consumer Fraud Act. Thus a violation of the HRRA exposes a contractor to liability for compensatory and exemplary damages, as well as, attorney's fees and court costs.[139]

 

However, to recover damages and attorneys fees under the Consumer Fraud Act, the consumer must prove actual damage caused by the violation of HRRA and that the contractor knowingly violated the HRRA. Thus in Kunkel v P.K. Dependable Construction, LLC [140] the contractor failed to give the required consumer rights pamphlet. However the consumer did not offer any evidence of how the failure to give the required pamphlet caused the consumer damage and offered no evidence as to the contractor's state of mind to show the violation was knowing. Therefore the court concluded no action for damage or attorneys fees could be sustained. [141]

 

In K. Miller Construction Company, Inc. v. McGinnis, the Illinois Supreme Court held that the contractor's violation of HRFA, by failing to give the consumer a written contract for contracts exceeding $1,000, did not bar the contractor from recovering for the work provided. Thus the contractor could still enforce his contract and Mechanics Lien Rights, or in the alternative, its right to recover for the value of its services or quantum meruit. [143]

 

§4.16 The Home Repair Fraud Act

 

Another Act similar to the Home Repair and Remodeling Act is the Home Repair Fraud Act ("HRFA"). However, the HRFA seeks to prevent fraudulent conduct by contractors and criminalizes violations by the contractors of the act. The HRFA provides for harsh criminal penalties to contractors who violate this act. Because intent to commit fraud is required by the statute, honest contractors should not expect to be charged with violations of this statute.

 

§4.17 Who and what it covers

 

The HRFA covers those contractors who fix, replace, alter, convert, modernize, improve, or make additions to any residential property.[150] The contractor can be an individual, partnership, corporation, business or any legal entity.[151] The HRFA covers work such as construction, installation, replacement or improvement of swimming pools, basements, chimneys, garages, fences, heating and cooling systems, furnaces and boilers, windows and roofs and the like.[152] It does not include work such as sale, installation, cleaning and repair of carpets, any work dealing with home appliances such as disposals, refrigerator, ranges, washing machines, hot water heaters and the like, if the person replacing, installing, repairing, or connecting the appliances is an employee of the merchant who sold the item to the homeowner.[153]

 

Under the HRFA, a residence means a single-family home or dwelling or multi-family home, condominiums, townhouses, used or intended to be used by occupants as dwelling places.[154] The HRFA does not apply to new construction of single family homes nor any multi-family residences or repairs to units with more than 6 apartments or dwelling units.[155]

 

 

§4.18 What are violations of HRFA

 

A key element of violating the HRFA is entering into a written or oral contract with a person for home repair and knowingly doing any of the following:

 

(1)               Misrepresenting material facts of the contract including facts related to the preexisting conditions of the property or promising services which one does not intend to perform;[156]

 

(2)               Using deception, false pretenses or promises to induce, encourage or solicit a person to enter into a contract with the contractor;[157]

 

(3)               Entering into an unconscionable contract with a homeowner requiring payment of at least $4,000. For purposes of the HFRA, unconscionable means charging an unreasonable amount based on the difference between the value of the services, materials and work to be performed and the amount charged for those services, materials and work. If the total payment of the contract is four times the market value for the same services, material and work, then that is sufficient prima facie evidence of violation of this act;[158]

 

(4)               Failing to comply with the Assumed Name Business Act and misrepresenting or concealing their real name, name of the business or its address[159]

 

A person commits home repair fraud if they also commit the following:

 

(1)   Damages another property with the intent to enter into an agreement to repair the damage or[160]

 

(2)   Misrepresents that he is an employee of a governmental unit or public utility with intent to cause a homeowner to enter a contract for home repair.[161]

 

Section (c) of HRFA which created a rebuttable presumption of intent to violate the HRFA, based on certain predicate acts, was declared unconstitutional by the Illinois Supreme Court and severed from the Act. [162]

 

A totality of the circumstances of the transaction determines the intent of fraudulent conduct on a case by case basis. Substantial performance does not include work performed of little or no value or which does not comply with applicable building codes or regulations.[163]

 

§4.19 Damages and penalties for violation

 

The HRFA provides for various criminal charges against violators of this Act, Charges can range from Class A misdemeanors when the amount of the contract is $1,000 or less to Class 4 felonies where the amount of the contract is for greater than $1,000.[164] Classification of whether one would be charged with a felony or not depends on which subsection of the act is violated. Entering into unconscionable agreements is a Class 3 felony when the amount of the agreement is for $10,000 or more, and is a Class 4 felony when the amount is for less than $10,000.[165] Concealing your name and failing to abide by the Assumed Business Name Act could result in a Class 4 felony if the agreement is for $1,000 or more and a Class 3 felony if less than $1,000.[166]

 

§4.20 Aggravated Home Repair when consumer over age of 60

 

In order to protect senior citizens, who often are targeted for unscrupulous behavior, a person who commits home repair fraud against someone 60 years of age or older or disabled is guilty of aggravated home repair fraud.[167] Violations against persons 60 years of age or older can result in criminal charges of as high as a Class 2 felony if the violator uses deception or misrepresentation against the homeowner and the contract is for more than $500.[168]

 

If a person commits aggravated home repair fraud, any State or local license or permit held by that person may be suspended or revoked by the issuing authority.[169]

 

§4.21 Construction Contract Indemnification for Negligence Act

 

Purpose of Act

 

The Construction Contract Indemnification for Negligence Act[170], also known as the Anti-Indemnity Act[171], voids any covenant, promise or agreement relating to construction work that indemnifies or holds harmless another party for that party's own negligence[172].

 

The Anti-Indemnity Act was enacted in response to the common practice of the construction industry to require subcontractors to indemnify general contractors and owners from all liability for injuries on construction projects, thus reducing incentives to protect workers and others from injury.[173] The purpose of the Act is to foster workplace safety by preventing a party from insulating itself from its own negligence.[174]

 

 

§4.22 Construction bonds or insurance contracts are exempt under the Act

 

The Anti-Indemnity Act expressly does not apply to construction bonds or insurance contracts.[175] This exemption protects construction workers and the public by allowing an insurance policy to provide an additional source of compensation for injured persons.[176] Thus an agreement to furnish insurance to cover damages caused by negligent acts of another party are enforceable.[177] Estate of Willis, at 1010.

 

However if the subcontractor contracts to provide insurance indemnifying the general contractor or owner from their liability, it is void if it is inextricably tied to a void clause for indemnification.[178]

 

§4.23 Self-insurance contracts indemnifying third parties for their negligence are void

 

A contract provision requiring a subcontractor to provide self-insurance to indemnify a general contractor or owner for their own negligence is void under the Anti-Indemnity Act.[179] Thus a court reasoned that there is no real difference between an agreement by a subcontractor to self-insure for the general contractor's negligence, rather than to indemnify the general contractor.[180]

 

§4.24 Partial indemnity provisions do not violate the Act.

 

Partial indemnity clauses which agree to indemnify others for the negligence of the subcontractor are enforceable because they really just indemnify other parties for the subcontractor's negligence. Partial indemnity clauses only indemnify others for the portion of the negligence attributable to the subcontractor and not the portion of the negligence attributable to other parties. Thus partial indemnity clauses are consistent with liability imposed by the Joint Contribution Act[181] and do not violate the Anti-Indemnification Act.[182]

 

Under the Workman's Compensation Act an employer is liable to its employees only to the extent that it is liable under the Workman's Compensation limits of recovery.[183] Although an employee can not sue his employer for work related injury, he can sue others who negligently caused or contributed to the cause of his injury.[184] The third party sued also has a right under the Joint Contribution Act to file a third party complaint against any other party including the employee's employer who negligently contributed to the cause of the injury.[185] The employer can raise as an affirmative defense his limit of liability under the Workman's Compensation Act.[186] This is known as the Kotecki cap. However, the subcontractor can waive this affirmative defense in a contract provision that it will indemnify others to the extent that the subcontractor's negligence caused the injury.[187] The Illinois Supreme Court recently upheld this provision because it did not indemnify the general contractor from liability for its own negligence, but only for the negligence of the subcontractor. Thus this provision did not violate the prohibition of the Act.[188]

 

§4.25 Act only covers construction related contracts and construction activities

 

The Act specifically only voids indemnification agreements relating to construction activities. Thus a provision requiring a janitorial service to indemnify a building manager for any injuries relating to the general cleaning service was valid and not a violation of the Act.[189] One can also waive liability for injuries occurring after the work has been completed, since it is only the construction activities which are covered by the Act. Thus, an alarm system contract eliminating any liability of the alarm system company after installation of the system was valid.[190]

 

§4.26 The Building and Construction Contract Act

 

The Building and Construction Contract Act was enacted to remedy the increasing practice in the construction industry of including clauses in contracts requiring that any litigation, arbitration, or dispute resolution procedure concerning the contract be subject to another state's law or commenced in another state. Usually the state selected was the state where the general contractor's maintained its corporate office. Thus to enforce a subcontractor's rights, it would be required to bear the burden of filing suit and tendering witnesses in another state.[191] This placed the subcontractor at a substantial disadvantage in enforcing its rights.[192]

 

The Act voids any provision in a contract for construction to be performed in Illinois that makes the contract subject to another state's law or requires that the litigation, arbitration or dispute resolution take place in another state.[193] The Act applies to any contract for the design, construction, alteration, improvement, repair, or maintenance of real property, highways, roads, or bridges. [194] The Act specifically does not apply to any construction contract awarded by the United States or by any other state.[195] The Act also does not apply to any person primarily engaged in the business of selling tangible personal property.[196]

 

Thus the Act probably does not apply to the manufacturers and sellers of heating and air conditioning systems, refrigeration systems, windows and other building material and equipment. Therefore, a contract or buying building construction material and equipment may be bound by a clause in its contract with the seller that requires suit to be filed in another state with its law to apply. The Act also may not apply to arbitration provisions requiring arbitration in another state, if preempted by the Federal Arbitration Act.[197]

 

The Act applies prospectively only to contracts entered after the effective date of the Act. It does not apply to contracts entered before the effective date of the Act to invalidate forum selection and choice-of-law provisions. [198]

 

Updated February, 2011.