Thursday, November 3, 2011

Is A Contractor's "Ignorance of the Law" an Excuse to an Illinois Home Repair and Remodeling Act Violation?

I am honored to have had an article I wrote published in the October 2011 issue of the newsletter for the Illinois State Bar Association's Construction Law Section, entitled "Must a homeowner establish the contractor's state of mind to state a claim for a violation of the Illinois Home Repair and Remodeling Act?"  I have written extensively about the HRRA on this blog (I believe this will be my 20th post carrying the "home repair and remodeling" tag), both because it is directly related to one of my core practice areas, construction law, and also because it is an area of the law that has been a veritable hornet's nest in recent years, and therefore fascinating.  The statute was amended last summer and the Illinois Supreme Court released an important case opinion at essentially the same time.  Further amendments were enacted this summer and will take effect in January 2012.

Before last summer, the controversial question was essentially this - "If a home repair and remodeling contractor does not comply with the HRRA, does the homeowner still have to pay the contractor for its work?"  The focus was on the homeowner's DEFENSIVE legal options.    Illinois appellate courts were split on this issue, until the legislature amended the statute and the Illinois Supreme Court held, citing the amendment, that the contractor has a right to be paid for its work, and that the homeowner's recourse under the HRRA, if "actual damages" are suffered, is to sue the contractor under the Consumer Fraud Act.  The key question now is this - "What must a homeowner prove to sue the contractor under the CFA via the HRRA, and what impact will that have on the industry?"  Thus the focus has shifted to the homeowner's OFFENSIVE legal options.  In a case in which the contractor files a mechanics lien and a lawsuit seeking to be paid for its work but the homeowner claims the work was defective or otherwise not completed per contract, as a matter of pleading, the homeowner would now need to allege a "Counterclaim" rather than an "Affirmative Defense" (although there still may be cause for doing both, for various reasons).

To make her legal claim, clearly the homeowner Plaintiff would need to establish 1) a violation of the HRRA (such as contractor failure to provide a written contract, the required consumer rights brochure, etc.), 2) actual damages 3) suffered as a result of the HRRA violation.  However the CFA itself also provides a cause of action for violating the HRRA, in Section 2Z, and this provision adds the language "any person who knowingly violates [the HRRA]...."  This inconsistency between the two statutory provisions may potentially cause confusion and courts may again disagree.  In my opinion based on my read of the relevant caselaw, which is extremely sparse on this issue as of yet, the CFA provision should be interpreted to require only that the contractor "knowingly" caused the homeowner to rely on the underlying act or representation, whether the contractor had ever heard of the HRRA is irrelevant.  To cite the familiar maxim, "ignorance of the law is no excuse."

I must close with a testimony to the value of the practice area sections offered by many bar associations, including the ISBA.  These groups provide attorneys opportunities to keep abreast of the latest legal developments and cases in their practice area, to form lasting peer relationships, and to engage in productive, civic dialogue about what the law is and what the law should be.  All of this benefits not only the attorneys involved, but also our clients and the community at large.


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