By: Jay A. Andrewhttp://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2359&ChapterID=67 was enacted and became effective on January 1, 2000. The intent of the original Act was to protect the elderly from so called “Storm Chasers”. “Storm Chasers” are contractors who move from state to state seeking repair work after natural disasters in an effort to collect the insurance proceeds. The HRRA’s five main requirements are that: 1) a contractor must provide the consumer a written contract on any home repair or remodeling job over $1,000.00 2) If that contract contains an arbitration and/or a jury waiver the contractor must get the consumer to acknowledge those provisions in writing 3) the so-called “Storm Chaser” provisions 4) a contractor must provide the consumer with a Consumer Rights brochure for any home repair or remodeling job over $1,000.00 and 5) Minimum insurance requirements for contractors.
The original version of the HRRA stated that it was “unlawful” for any person not to comply with the HRRA. Some very creative attorneys in our state decided that this meant that consumers could use this as a shield to paying contractors for home repair and remodeling work when disputes arose and in some cases they argued that it wiped out the contractor’s Mechanics’ Lien. Thereafter, the Illinois Appellate Courts weighed in on the issue. They had different opinions on these theories. The Act was rewritten in July 2010 to remove the word “unlawful” from Section. At the same time, the K. Miller Construction Company, Inc. v. Joseph McGinnis case was being considered by the Illinois Supreme Court. In September 2010, the Illinois Supreme Court issued their opinion. They found that in light of the statutory amendments, a violation of the HRRA did NOT invalidate the Mechanics’ Lien or effect the enforceability of the construction contract.
Therefore, as consumers you are now left with a private right of action under the statute for a violation. The key to that action is the consumer’s ability to prove actual damages from the violation. The consumer’s attorney can attempt to “boot strap” the violation under the Illinois Consumer Fraud to obtain punitive damages and attorney’s fees. However, a finding of “bad faith” by the trier of fact would become necessary to recover those additional damages under the Consumer Fraud Act.
For the contractor, you should take a look at the HRRA and verify that you are in compliance before you head out to your next job. Your lien rights and enforceability of your own contract appear not to be in jeopardy with a violation, however, suffering through a direct action can also be a costly venture.
If you have any questions about the Home Repair and Remodeling Act, the Home Repair Fraud Act or the Illinois Consumer Fraud Act, whether you are a contractor or a consumer, feel free to contact Jay A. Andrew of DGAA, LLC W: www.dgaalaw.com E: firstname.lastname@example.org P: 847.934.6000 x14
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 Behl Construction v. Gingerich, 396 Ill.App. 3d 1078, 920 N.E.2d 665 (4th Dist., Illinois 2009); Roberts v. Adkins, 397 Ill.App.3d 858, 921 N.E.2d 802, 336 Ill. Dec. 946 (3rd Dist., Illinois 2010); Smith v. Bogard, 377 Ill.App.3d 842, 879 N.E.2d 543 (4th Dist. Illinois 2007)
 238 Ill.2d 284, 938 N.E.2d 471 (2010)