I regularly represent both consumers and construction professionals in general business and home improvement litigation matters.
Often times, initial disputes between a consumer and contractor pertain to a quality of workmanship issue; however, such disputes can quickly evolve into a statutory compliance matter for a contractor.
In such circumstances, the consumer enjoys many statutory protections and the contractor may have significant exposure/liability.
There are a number of statutes which apply to home improvements under Indiana law; however, this article provides a high-level overview of one of the principal statutes that governs home improvements, the Home Improvement Contract Act (“HICA”) (codified at: I.C. § 24-5-11 et seq.).
The HICA governs any home improvement (defined as any alteration, repair, replacement, reconstruction, or other modification of residential real property[1]) that has a price exceeding $150.00. Accordingly, the HICA’s reach extends to the vast majority of home improvement work between a consumer and contractor. All home improvements governed by the HICA are required to be distilled in a written contract. The HICA sets forth a number of actions the contractor must make regarding executing the contract as well as a number of required contractual provisions.
Prior to beginning work on a consumer’s residential structure, the HICA requires a contractor to obtain all necessary licensing and permitting. Additionally, a contractor must sign the contract prior to providing it to the consumer and provide an executed copy of the contract to the consumer after the consumer signs it.
In addition to the foregoing acts, a contractor must provide the consumer with a written contract which contains at least the following provisions:
- The name and address of the property being improved;
- The name, address, email and phone number of the contractor;
- The name, telephone number, and email address for each owner, officer, employee, or agent to whom consumer problems and inquiries can be directed.
- The date the contract was provided to the consumer and any limitation on when the consumer can accept the contract;
- A “reasonably detailed” description of the improvements;
- The approximate starting and finishing time of the work;
- A statement of contingencies that would materially change the completion date;
- A statement of whether any third-party will furnish materials or labor (notice of use of sub-contractors);
- The price of the improvements;
- Signature lines for contractor and consumer with legibly printed names of both below or next to signature line;
- The contract must be in a form that is easy for a consumer to read and understand;
- The contract must include a specifically worded and formatted (provided by statute) Notice of Consumer Rights and Cancellation along with a separate detachable Notice of Cancellation; and
- If disclaiming implied warranties, a specifically worded notice under the Indiana Home Improvement Statutory Warranty Act (codified at I.C. § 32-27-1-13, though not discussed in this Article).
If insurance proceeds are used in a whole or part for a home improvement, then the contractor must comply with a host of other requirements, such as: not submitting any claims directly to the consumer’s insurer and not offering any offer or promise to pay any rebate or part of an insurance deductible to get a consumer to sign the contract.
Each instance of non-compliance with each and every requirement of the HICA automatically constitutes a deceptive act under the Deceptive Consumer’s Sales Act (“DCSA”) (codified at: I.C. § 24-5-0.5). Each deceptive act is actionable by both the Indiana State Attorney General and the harmed consumer under the DCSA.
The Home Improvement Fraud statute (I.C.§ 35-43-6-12), DCSA and HICA provides criminal and civil liability for uncured and/or incurable deceptive acts. Deceptive acts can potentially rise to the level of the level A Misdemeanor, Home Improvement Fraud. Under Indiana law, A Misdemeanors potentially carry a sentence of court fines and costs and up to a year in prison.
Additionally, the DCSA provides that a consumer may void the contract and receive up to three times actual damages as well as an award of court costs and attorney’s fees.
Moreover, the Indiana State Attorney General may impose hefty sanctions and fines on a non-compliant contractor. That said, a contractor potentially has a significant amount of exposure for simply failing to abide by the HICA. On the other hand, such non-compliance by a contractor avails very generous remedies to the consumer.
So, in sum: as a business you likely need a compliant home improvement contract for most home improvements (the Indiana Appellate Court has even held that spraying for termites constitutes a “home improvement” under the Home Improvement Fraud Statue which defines home improvement almost identically to the HICA (Tucker v. State, 646 N.E.2d 972 (Ind. Ct. App. 1995)). As a consumer, there are a myriad of time sensitive notice requirements which very likely require the skilled hand of an attorney to preserve your statutory claims. In my experience, involving an attorney very early on can make a significant difference in the availability of damages and valuation of those damages in a contractor dispute.
With the foregoing in mind, the statutes pertaining to home improvements in Indiana interact, are precise, and can be difficult to navigate. While this article is not intended in any way to provide any specific legal advice, Attorney Nicholas A. Podlaski of PODLASKI LLP 111 W. Berry Street, Suite 211 Fort Wayne, IN 46802 can provide legal assistance to you are a consumer who has a dispute with a contractor or if you are a contractor that has a legal question or issue pertaining to statutory compliance or construction litigation. You are urged to consult an attorney on any specific legal questions concerning your particular situation.
[1] The HICA defines “real property” or “residential real property” as any real property that: (1) contains one (1) to four (4) units; and (2) is used in whole or in part as a dwelling of a consumer. The term includes all fixtures to, structures on, and improvements to the real property. Essentially, this covers most homes, duplexes, apartments and the like. Additionally, the HICA covers any fixture on the real property such as garages, decks, pergolas, and pools.
