Home Repair and Remodeling Act Only Requires Substantial Compliance
In the recent decision of Behl Construction v. Gingeric, the Fourth District addressed whether a plaintiff is precluded from recovering the amount he claims is due from a defendant when there was no signed contract and no delivery by him of the consumer-rights brochure to defendant, both of which are required pursuant to the Home Repair and Remodeling Act (Act) (815 ILCS 513/1 through 999 (West 2006)). The Act requires that for any repair or remodeling work over $1,000, "a person engaged in the business of home repair or remodeling shall furnish to the customer for signature a written contract or work order." This contract or work order must meet certain disclosure requirements, including cost and the name and address of the construction company. The Act also requires that "any person engaging in the business of home repair and remodeling shall provide to its customers a copy of the 'Home Repair: Know Your Consumer Rights' pamphlet prior to the execution of any home repair and remodeling contract"; the text of this brochure appears in the statute itself. 815 ILCS 513/20 (West 2006). The Act specifies that it is "unlawful for any person engaged in the business of home repairs and remodeling to remodel or make repairs before obtaining a signed contract or work order [when the amount of the work is] over $1,000."
Behl filed a complaint against Gingerich, alleging Gingerich had failed to pay Behl $15,500 for labor and materials plaintiff had provided under a construction contract to remodel defendant's home. Gingerich filed a motion to dismiss, claiming plaintiff was precluded from recovering any amounts from him because plaintiff had violated the Act.
After trial, the trial court found in plaintiff's favor and awarded him $9,594.03 in damages. Defendant appealed, arguing that plaintiff could not enforce the contract due to the specific requirements of the Act or, in the alternative, if the contract was enforceable; the court erred in calculating the judgment amount. Plaintiff filed a cross-appeal, also arguing that the court erred in its calculation of damages on different grounds. Plaintiff also claimed the court erred in finding that his mechanic's lien was unenforceable as untimely. There was no dispute that the work order that was provided by Behl wasn’t signed by Gingerich, and that Behl did not provide Gingerich with the brochure. Accordingly the issue before the Fourth District was whether Behl substantially complied with the Act so as to allow him recovery from Gingerich.
The court noted that the two pertinent provisions of the Act used the term “shall” (the contractor “shall” provide the brochure and “shall” furnish a contract for signature). Typically, use of the word "shall" in a statutory provision indicates that the legislature intended a mandatory, rather than a directory, provision. However, a mandatory provision does not always require strict compliance. "Substantial compliance can satisfy even a mandatory provision." Jakstas v. Koske, 352 Ill. App. 3d 861, 864, 817 N.E.2d 200, 203 (2004). The court looked at (a) the purpose of the Act to determine whether the purpose was achieved without strict compliance, and (b) whether Gingerich suffered any prejudice from Behl’s failure to strictly comply with the Act. The court determined that the Act’s purpose was to improve communication between consumers and persons engaged in the business of home repairs or remodeling in order to "increase consumer confidence, reduce the likelihood of disputes, and promote fair and honest practices in [the repair and remodeling] business in this State."
The court ultimately found that Behl substantially complied with the provisions and purpose of the Act by negotiating with Gingerich regarding the scope of the work and cost and by presenting Gingerich with a written work order, which contained the details of the project with "reasonable particularity" and included Behl’s business name and address as required by section 15 of the Act. The court further found that Gingerich was not prejudiced by Behl’s failure to strictly comply with every provision of the Act.
The court based its decision on the fact that Behl and Gingerich, both engaged in the construction trades, negotiated the scope and cost of the project until they finally reached an agreement regarding the scope of the project. Before beginning construction, Behl supplied Gingerich with a written work order that represented their final agreement, which Gingerich did not dispute. The court also found significant that during the project, Gingerich paid Behl several draws, and the dispute between the parties was unrelated to Behl’s failure to secure Gingerich’s signature on a construction contract.

In
We’ve been
It’s still in its infancy, but Google Scholar’s beta version allows you to search scholarly articles, patents or legal opinions and journals. Here’s a sample search for “
On November 11, 2009 Judge Virginia Kendall of the Northern District entered memorandum opinion and orders in the matter styled,
According to the
We’ve been lax lately in getting our readers interesting district court opinions on topics that are facing the industry. Today we’re pleased to rectify a small portion of that delinquency with
Post hoc ergo propter hoc
We’ve been writing with updates regarding the