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.
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.
4 COMMENTS:
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
I think Mutual Home Repair Funds will help on this one. Ask your realtor service for it.
Mutual Home Repair Funds really helps. At least you don't have to shoulder the whole load yourself. Every bit helps.
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.
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