Because it would be unjust for a consumer to receive home improvement services without paying compensation to the provider, actions involving mechanic’s and materialmen’s liens are commonplace in Tennessee courts. When a home improvement service provider doesn’t play fair, The Tennessee Consumer Protection Act (TCPA) can be a useful tool for consumers. TCA § 47-18-101, et. seq.
While a review of the entire TCPA is recommendable for any litigator representing a consumer or business in any dispute, what continues to surprise me is the widespread non-compliance with obligations imposed on home improvement services providers by the TCPA. Here are a few points that may come in handy the next time your client is facing a claim from a storm-chasing roofing company, a bait and switch landscaper, an over charging flooring installer, a remodeler who halts progress after demanding more money or virtually any other residential repair or improvement services provider wrongfully claiming against your client.
What are home improvement services under the TCPA? Home improvement services means, “the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to any residential property, and includes but is not limited to, the repair, replacement, remodeling, alteration, conversion, modernization, improvement, or addition to driveways, swimming pools, porches, garages, landscaping, fences, fallout shelters, and roofing” TCA§ 47-18- 103(8).
Arguably, the provision of very few services, related to a residence, are outside of the reach of this section of the TCPA. If your dispute involves the provision of home improvement services, look for a written contract.
If no written contract produced by the provider has been delivered to the consumer, there is almost certainly a violation of the TCPA. All home improvement services providers are required to actually deliver specific written notices every time they agree to provide home improvement services. TCA § 47-18-104(b)(47). It is unlikely a service provider who does not bother with written agreements possesses the forethoughtfulness to provide the statutorily required notices.
If there is a written contract, or a collection of things that could conceivably be considered a contract, look for the physical address of the home improvement service provider. Addresses for post office boxes and UPS Store mailboxes do not satisfy this TCPA requirement. While a true physical address allows for service of process upon persons or entities not listed with the Secretary of State, the absence of one may also violate other provisions of the TCPA. TCA § 47-18-104(b)(4).
With the intent to induce an agreement, home improvement services providers often falsely claim to be part of the community wherein they are offering to provide service. The reliance of consumers of home improvement services upon false claims related to the geographical origin of the services may undermine the basis of a bargain. Under the TCPA, a home improvement services contract procured amid false claims regarding geographical origin is the product of unlawful conduct and is, accordingly, void ab initio. So, if a “local” contractor attempts to haul your client into court in some far off jurisdiction pursuant to a contractual venue clause, the TCPA provides a mechanism through which your client may recover, in their home jurisdiction, all damages, including attorney’s fees, incurred as a result of the institution of the improperly venued proceedings.
Other than avoidance of legal process service, many legitimate reasons exist for persons or entities to do business under an assumed name. In the case of home improvement service providers, the TCPA requires written notice to consumers of the true name and telephone number of the provider. The exclusive use, by an individual or entity engaged in the provision of home improvement services, of an unregistered assumed name or DBA constitutes unlawful conduct and violates the TCPA. Consumers are entitled to judgment for damages against the true name of the service provider.
Consumers can feel stuck when an improvement project begins with preimprovement demolition and, no doubt due to an “unforeseen” cause, the services provider demands more money to complete the project. When the kitchen is destroyed for months and a significant portion of the project cost was prepaid, consumers have options. Under the TCPA, providers of home improvement services are required to actually deliver written notice to the consumer that unilaterally deviating from the plans, using inferior materials or billing more than the contracted amount, among other things, may constitute criminal conduct. TCA § 47-18-104(b)(47)(A)(i), See also TCA § 39-14-154(b)(2). Unless consumers actually receive written notice regarding the right to receive a refund within 10 days of a request to a home improvement services provider, the TCPA has been violated and the consumer is entitled to damages, costs and attorney’s fees. TCA § 39-14-154(b)(1).
Consumers need not feel helpless in the face of a lawsuit filed by a home improvement services provider whose claim is based upon a contract procured in violation of the TCPA. Contractual penalties, interest, collection costs and attorney’s fees cannot be recovered by home improvement service providers whose failure, to deliver written copies of the statutorily required notices, renders the contract the product of unlawful conduct. However, the TCPA can provide consumers with a full recovery and protection from unjustified litigation. Sam Dreiling
