Sunday, October 4, 2009

The Consumer Rights Brochure

The Home Repair and Remodeling Act has been discussed frequently on this blog. You will recall that the Act requires any person engaged in the business of home repair or remodeling (except subcontractors) to obtain a signed contract from the homeowner for projects worth more than $1,000. The Act also requires the contractor to provide the homeowner a Consumer Rights Brochure published by the Attorney General's office.

Until now, no court in Illinois had decided whether the failure to provide the Consumer Rights Brochure, by itself, was a material breach of the Act which would bar recovery by the contractor. In Artisan Design Build, Inc. v. Bilstrom, No. 2-08-0855 (September 22, 2009), the Second District has ruled that it is not. (Opinion here.)

In that case, plaintiff was hired by the homeowners to make improvements to their home. After several change orders, several partial payments, and several disagreements, the plaintiff eventually filed suit against the homeowners for approximately $208,000. The parties did have a written contract. However, the homeowners filed a motion to dismiss under the Act for plaintiff's failure to provide the Consumer Rights Brochure.

The court interpreted the Act de novo. The court noted that Section 30 of the Act specifically declares that it is unlawful for contractors to perform work for more than $1,000 without first obtaining a written contract. In contrast, Section 20, which requires the Consumer Rights Brochure, does not provide that a failure to furnish the brochure constitutes an unlawful act or otherwise has any impact with respect to the enforceability of the contractor's rights.

In its holding, the court "interpreted the plain language of the Act to mean that a contractor's failure to provide the consumer with the brochure does not vitiate the contractor's right to recover either in equity or in law."

Thank goodness. Any other result would have been absurd.


John Lynch said...

I represent Artisan in this matter, and your comment that any other result would have been absurd is dead-on. Stay tuned, however, as this case may find its way to the Illinois Supreme Court. There is at least one justice who, I believe, is very interested in clarifying the law in this area so it makes sense and is fair for contractors and owners alike. This Second District opinion, like the recent First District opinion in K. Miller v. McGinnis, is a start.

Michael W. Huseman said...

On behalf of my contractor clients, good luck at the next level.