It is no secret that the market has been consumer friendly over the past couple of years and has caused an uptick in consumer spending on contractors to perform renovations on their homes. However, as the times have slightly shifted, and the Federal Reserve has sought to limit consumer spending, we have seen an increase in homeowners’ unwillingness to pay for the services that they originally contracted for. The avenue many homeowners are now pursuing when faced with a demand for payment is an alleged violation of New Jersey’s Consumer Fraud Act (“CFA”), N.J.S.A. 56:8-1 et seq., which carries significant consequences, due to technical violations regarding the parties’ contract.
New Jersey has some of the strictest consumer protections in the country, particularly concerning work performed on residential properties. All home improvement contracts for a price more than $500.00 must be in writing, as well as all subsequent change orders. See N.J.S.A. 13:45A. The contract must contain certain information such as: Your registration number, a copy of your insurance policy, a start and end date, and the Department of Consumer Affairs’ telephone number—to just name a few. See generally N.J.S.A. 56:8-144; N.J.S.A. 56:8-151; N.J.S.A. 56:8-142(d); N.J.A.C. 13:45A-16.2(a)(12). While these omissions may seem small or even meaningless, your failure to comply with these requirements will cause you to be in violation of New Jersey’s Home Improvement Practices Act (“HIPA”), N.J.A.C. 13:45A-16.1 to -16.2. A violation of HIPA regulations constitutes unlawful conduct in violation of the CFA. See e.g., Perez v. Professionally Green, LLC, 215 N.J. 388, 400 (2013) (noting omission of required start and end dates in contract in contravention of N.J.A.C. 13:45A-16.2(a)(12) was technical violation of CFA); Huston v. Lieber, 2015 N.J. Super. Unpub. LEXIS 866, at *7 (N.J. Super. Ct. App. Div. Apr. 17, 2015) (finding violation and unlawful conduct where contract not signed, registration number not included, copy of certificate of commercial general liability insurance not appended to contract, and contract failed to include cancellation provisions).
The CFA provides for the recovery of ascertainable losses, treble damages, attorney’s fees, and costs. As such, the threat of a violation of the CFA is enough to stop a contractor dead in its tracks because any alleged CFA violation puts you on the defensive rather than the offensive due to the significant penalties that are afforded to a prevailing party. While the homeowner must ultimately prove that the alleged technical violation was casually related to any alleged ascertainable loss, this can be a costly endeavor to litigate—one that, more often than not, exceeds the homeowner’s outstanding balance due and owing.
Now is the time to be proactive rather than reactive. All contractors that perform work on residential homes should ensure that their contracts comply with HIPA and the Contractor Registration Act, N.J.S.A. 56:8-136 et seq., in order to avoid the threat of a CFA violation(s).
Should you have any questions, please contact: Edward A. Velky at evelky@bressler.com and Pauline Tarife at ptarife@bressler.com