Illinois Home Repair and Remodeling Act: Contractors Must Still Beware
There's been a lot of recent decisions by judges applying the Illinois Home Repair and Remodeling Act (the "Act"). The Act is that statute requiring contractors working on people's homes to: (a) have a written contract, (b) include certain terms in the contract (e.g. price, insurance, dispute resolution), (c) give the homeowners a special brochure, and (d) get a receipt for giving the brochure. The judges in one case, Smith v. Bogard, held that homeowners needn't pay a contractor who fails to comply with the Act.
- Artisan Design Build, Inc. v. Bilstrom from the Illinois 2nd District Appellate Court hearing an appeal from DuPage County
- K. Miller Construction Company, Inc. v. McGinnis from the Illinois 1st District Appellate Court hearing an appeal from Cook County
These decisions are both good for contractors. But they only affect select counties. And the Illinois Supreme Court will probably hear further appeals in one or more of these cases. That could mean one or the other applies statewide throughout Illinois. Or it could mean that neither decision applies anywhere in Illinois.
I'm going to add only one more thing to what Ashley said in his posts. Back in 2008, before these two recent decisions came out, the Home Builders Association of Illinois ("HBAI") published a report on the Act (the "Report"):
Urging their members to comply with the Act, and- Instructing the members how to comply with the Act
Who knows what the final outcome of all these cases will be: will a contractor who doesn't comply with the Act get fully, or at least partially, paid? Of course it won't really matter to you if you just comply with the Act to begin with. How do you do that?
- The Report is a good place to start. Just remember that it was written before the Artisan Design Build and K. Miller Construction decisions. These decisions now make things better for some home repair and remodeling contractors. Nevertheless, heed the Report's warnings
- Consult with an Illinois licensed lawyer familiar with the Act is a good idea too
Construction Law Today is a legal blog about construction contracts, disputes, finance, and the people whose job it is to deal with them.
I respectfully disagree with the comment that these appellate decisions "only affect select counties." Constitutionally, Illinois only has one appellate court and, therefore, all appellate districts are bound by other district's opinions. I recognize that many trial and appellate courts do not follow this principle, but trial courts do follow appellate decisions in other districts if their own district does not have a contrary opinion (like the trial court did in Artisan). I point this out not to split hairs, but to encourage litigants in counties outside the the Second and First District Appellate Courts to use the Artisan and K. Miller opinions to their benefit. Feel free to contact me to discuss. I represent Artisan in the above case.
@ John Lynch:
Thanks for commenting. Good points. Certainly NOT hairsplitting.
The trial and appellate courts in the 3rd and 5th Appellate Districts respectively now must decide whether they want to follow (a) the pro-contractor position you advocated in Artisan or (b) the pro-owner position that the 4th District adopted in Smith v. Bogard. Unless of course the Illinois Supreme Court hears and decides an owner appeal from the Artisan or K. Miller decisions.
Is your adversary from the Artisan case asking the Illinois Supreme Court to hear an appeal from the 2nd District's decision?
@ Josh Glazov
Yes, they are. The Bilstroms have filed a petition for leave to appeal. I'll let you know if the PLA is allowed.
I have a similar case in First district, Chicago, and am following the artisan case with great interest.
I need a good lawyer. I have a specific question about section 13 of the mechanics lien act. Is it not the intention of the legislature that the lowly laborer gets top priority. His lien is a preferred lien. And that it is the duty of the judge to ascertain if all laborers have been paid early in the litigation, and to put pressure on the contractor, or owner to pay those claims, or face judgment, and foreclosure if those claims are not paid. And furthermore that the lowly laborer is not required to go through a long discovery process, with depositions, Interrogatories, and all that. It is written that he need file only an affidavit of the hours worked, the kind of work performed, and the amount owed, and the court shall direct that laborer paid "In a short day fixed by the court" I'm not sure I have the quote word for word, but it is a very important and interesting issue and very few lawyers, or judges know the answer.
In my next post I will quote the relevant part of section 13 that requires interpretation.
Section 13, says “ IN ANY PROCEEDINGS TO ENFORCE A LIEN ON ACCOUNT OF WAGES DUE FOR LABOR, THE CLAIMANT NEED ONLY FILE AN AFFIDAVIT GIVING THE AMOUNT DUE, BETWEEN WHAT DATES THE LABOR WAS PERFORMED, AND THE KIND OF LABOR PERFORMED , AND THE COURT SHALL DIRECT THE AMOUNT DUE FOR WAGES AS THEREIN SPECIFIED TO BE PAID WITHIN A SHORT DAY TO BE FIXED BY THE COURT...”
Then it says, “ THE COURT SHALL PROCEED AT ONCE TO HEAR THE EVIDENCE, AND DETERMINE THE MERITS OF THE CLAIM, AND IN THE EVENT THE ALLOWANCE FOR WAGES IS NOT PAID WITHIN THE TIME FIXED BY THE COURT, THE COURT SHALL ORDER THE PREMISES SOLD TO PAY THE AMOUNT IN SUCH A MANNOR AS IT DIRECTS.”
A short day to be fixed by the court has become 5 years and an appeal. If the above quote does not mean "pay the laborers right away", what does it mean?