Wednesday, August 25, 2010

Equitable Remedies under the Home Repair and Remodeling Act

Illinois' First District has already held that equitable remedies such as quantum meruit and unjust enrichment are available to contractors who do not have written contracts with homeowners or are otherwise in violation of the Home Repair and Remodeling Act. See K. Miller Construction Company, Inc. v. McGinnis 394 Ill.App.3d 248 (1st Dist. 2009).

Now, the Second District has followed suit. In Fleissner v. Fitzgerald 02-09-0805 (August 9, 2010), the court analyzed equitable remedies under the Home Repair and Remodeling Act in light of previous judicial decisions (Slepian, McGinnis, Bogard, Bilstrom, and Adkins) that have either specifically held or otherwise acknowledged that it is unlawful for a contractor to perform home repair and remodeling work without a written contract.

In Fleissner there was a consumer/homeowner who admitted to the existence of an oral contract with the contractor, admitted that work was performed per the agreement, and admitted to having paid nearly all of the contract amount. The issue was whether the contractor could recover the remaining balance due under quantum meruit or unjust enrichment theories.

While the Court acknowledged that the statute requires a written contract, the Court could not say that the oral contract in this case violated the public policy behind the Act, as there was not a consumer who was deceived by a "fly by night" contractor. Rather, the case involves an honest contractor seeking payment for performed services.

The Court then considered whether equitable relief through quantum meruit or unjust enrichment is available to a contractor relying upon an oral contract despite the Act's requirement that a written contract exist for certain home repair or remodeling work. On this issue, the Second District agreed with the McGinnis court that the Act lacks any clear and plain intent to eliminate equitable remedies available under common law.

Further, like in McGinnis, there were no allegations that the contractor was involved in any deceptive practices. The McGinnis court discounted the homeowners' position that allowing quantum meruit recovery on an oral contract would reward deceptive practices and would violate public policy. While the Act's purpose was to eliminate deceptive practices by making a written contract required for certain types of home repair or remodeling, an oral contract by itself is not a deceptive practice. Where unfair and dishonest conduct that the Act intended to eliminate is not present, the failure to work under a written contract is a "technical deficiency," which does not bar recovery by the contractor under equitable theories.

The Court held that allowing recovery under equitable theories would not defeat the purpose of the Act. The purpose of the Act is to protect consumers from "fly by night" deceptive contractors, not to bar an honest contractor from recovering for services actually performed. To hold otherwise would allow a consumer to renege on an otherwise valid oral contract after work is performed and enjoy the benefits of his improved property at the expense of the contractor.

35 comments:

Anonymous said...

Thanks for the great post. Good advice! I always thinking fixing up your home is a love hate thing. It can be extremely rewarding, but it can be a second job too. This was a great post though.

I stumbled upon this blog like I did yours. Thought it's humor on home fixing might be enjoyable: http://burisonthecouch.wordpress.com/2009/12/31/our-house/

Thanks for the post! I'd love to see more like it.

-Pete

perth home renovations said...

I think Mutual Home Repair Funds will help on this one. Ask your realtor service for it.

double glazing prices said...

Mutual Home Repair Funds really helps. At least you don't have to shoulder the whole load yourself. Every bit helps.

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I agree with the previous comments. It's good that there is a so called Mutual Home Repair Funds that would really love to help with your home renovation activities.

luxury home builders said...

I absolutely agree with everybody. This repair funds project can help homeowners with their renovations.

Selena Mcbride said...

This is good news to homeowners and also it would help them for renovation purposes.

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fall protection said...

This is why it is always preferable to have the homeowner around to check these renovation projects to avoid things like these. Leaving all the work and responsibility to the contractor may sometimes bring problems.

Victor Deloach said...

This act is necessary for legal, mutual benefits between the contractor and the home owner. Since home renovations require money, it is only necessary that a written contract is at hand.

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Benjamin Hall said...

I have been having a really hard time doing home repairs and did not know exactly what to do and what materials I should have. I went on looking for tools online and found what I was really suppose to have and learned a lot of DIY stuff.

Damon Schuartz said...

I do presume that this applies to all structures including establishments and buildings. There has been a great deal of building maintenance services in melbourne for they know what has to be done with all renovations for the benefit of the tenants.

Johnny Culp said...

Having said this, I am currently getting my home's roof safety systems fixed again. This time all efforts should be done to prevent some serious leaks during storms.

Stephen Sanders said...

It is quite the hassle knowing that you should still have to refer to the remodeling act before getting your own home fixed. I had my home renovated and underwent wall removal in perth. I was pleased to get it fixed in a jiffy without waiting for anything.

Zane Hovell said...

The written contract is for both the protection of the clientele and the building agency or workers. It is but logical to have it ready in case of problems with the repairs or renovations made. Back home, the contract will serve its purpose when building inspections perth comes in.

Grace Johnson said...

Because of your post, I was able to come up with a better basement decorating ideas that will surely improve the look of my home particularly my basement, I've been searching for some possible tips and concepts in designing my home.

Alfie Dale said...

This home repair would include the changes with the exterior of the house that would require garage door repairs perth as well.

Lauren Hixson said...

This act would mean that I have to have a contract if I need work for concrete sealer in my bathroom. I believe a contract will be beneficial indeed for both parties concerned.

Marie A. said...

This is the first time I've heard about this. When I moved into cape coral apartments for rent, I did encounter some issues similar with my hired contractors. If I had known this, I would have found the best solution to my problem.

Aiken Thomas said...
This comment has been removed by the author.
Eliza Bayman said...

I would have to agree with you Lauren. If I have a ruined wall in my house due to unmerciful termites because I just failed to call the pest control, does this mean that I also have to have a contract for repairs?

Toby Barlow said...

Good to know that there are still lawmakers that have the idea to help the public. Repairing and remodeling can save a lot of dollars rather than to buy a new house, but what I think is the real benefit of this is that owners has the privilege of having to maintain their home gradually in flexible terms.

Richard Carter said...

I honestly don't understand how this Home Repair and Remodeling Act works. Does this Act focuses on the protection of the home owner against fraud buyers or not? Please enlighten me more. Thanks!

Irma Scott said...

Rightfully so. With this act, both the client ordering home repairs or renovations whether outside or in their basement, and the contractor would be protected.

Sophia Barrett said...

Provisions and legal acts such as this one could certainly help the homeowners in getting the design they want to have. Of course, it also helps if, they've got to consult to someone who is expert in the field of remodeling.

Gary said...

The post pretty impressive and quite knowledgeable!

Stephanie Cockram said...

Thanks for the information. I'm always careful when choosing the people who will repair any part of my home. First thing I consider is the safety of my family, then the quality of my house.

Birmingham Home Remodeling said...

Superb Post,I have spent a lot of time to gain effective info,I liked it very much,Thanks for sharing..

Rebecca Fuller said...

It truly is one thing to captivate and audience with the glamorous and often moving art of stage play, the only thing on my mind whenever i see their dazzling sets is how I may recreate it in some of my home improvement work.

natural stone supply said...

Hi! thanks for sharing such a nice post. Pretty informative and knowledgeable article. All in all a good news for homeowners and it would also help them for renovation purposes.


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Contractors General NJ said...

Great Post! It's very nice to read this info from someone that actually knows what they are talking about.

Marvin J. Romo said...

Thank you so much for sharing this information! Not many homeowners are familiar with the new Home Repair and Remodeling Act.

Elizabeth R. Peterson said...

You raised some seriously great points here. I'm glad you posted this article and I found it just in time before I start getting my hands on our home improvement project.

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Sheamus Warior said...

I was pinning away for such type of blogs, thanks for posting this for us.

James Bond Bond said...

I had no idea of quantum meruit and unjust enrichment before, the two solutions for the contractors who are not in written contract with homeowners.
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Mattie Best said...

Truly the best blog I never got such information before this thanks.
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