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by Attorney Garrett J. Lee
It has been six years since the Massachusetts Appeals Court
came down with the Simas decision expanding the statutory
definition of the term "owner occupied" in Chapter 142A to
include homeowners who never lived in their home but intend
to live in the building when the home renovation work is complete.
Yet the language of Section 1 of the Chapter 142A still reads
as if new homeowners who have never occupied their home may
not avail themselves to the protection of the act. This is
a source of great confusion to both new homeowners and their
contractors.
What is Chapter 142A? Chapter 142A or
the "Home Improvement Contractor Act" is a consumer
friendly statute that sets out specific guidelines that contractors
must follow when contracting with homeowners for home improvement
work. Failure to comply with the provisions of the act may
subject the contractor to certain administrative sanctions,
criminal prosecution, and civil remedies. From a civil standpoint,
the real teeth of Chapter 142A is that it declares that any
violation of the act to be a per se violation of Chapter 93A,
the Massachusetts Consumer Protection Act. Chapter 93A is
a consumer friendly statute that prohibits "unfair or
deceptive practices" in the marketplace. Chapter 93A
may entitle a homeowner who prevails on a claim against a
contractor for violation of the Home Improvement Contractor
Act to recovery multiple damages and attorneys fees.
Standing to bring suit under Chapter
142A limited homeowners who fall within the statutory definition
of an "owner" described in Chapter 142A. Section
1 of Chapter 142A defines an owner as "any homeowner
of a pre-existing owner-occupied building containing at least
one but not more than four dwelling units, or tenant thereof,
who orders, contracts for, or purchases the services of a
contractor or subcontractor." A plain reading of this
language makes it appear that only persons who are in occupancy
when the work is being done by the contractor may avail themselves
to the protection of the act. This is not the case at all.
In 2001, the Massachusetts Appeals Court
issued a decision in Simas v. House of Cabinets, Inc. expanding
the statutory definition of Section 1 of Chapter 142A to include
a brand new homeowner who has never occupied their home but
intends to occupy the building when the work is complete.
In Simas, a homeowner purchased a house
in Burlington Massachusetts, and before moving in hired a
contractor to make some renovations. Unfortunately for the
homeowner, the job did not go smoothly, and the parties terminated
their relationship before the renovations were complete.
After an exchange of written demands
by the parties, the homeowner filed a request for arbitration
with the Commonwealth's Executive Office of Consumer Affairs.
In ruling in favor of the homeowner, the arbitrator found,
among other things, that the contractor's work was incomplete
and performed poorly; that the contractor violated the payment
schedule by invoicing and receiving payment for work that
had not been done and materials that had not been delivered;
that the contractor failed to procure all legally required
permits; and that the contractor covered up work requiring
rough inspection without first having had it examined by the
appropriate town building officials.
Following arbitration, the contractor
initiated an action in the Superior Court requesting a review
of the arbitrator's decision. The homeowner responded by moving
for leave to amend his request for arbitration to include
a demand for relief under G.L. c. 93A. A Judge in the Superior
Court allowed the homeowner's motion, over the contractor's
opposition. As a result, the homeowner's 93A claim was included
with his Chapter 142A claim in the proceedings. At trial,
the contractor was found to have committed a number of Chapter
142A violations and judgment was awarded in favor of the homeowner.
The contractor appealed.
On appeal, among other things, the contractor
contended that the homeowner was not entitled to protection
under Chapter 142A because he never lived in the house where
the work was performed and thus could not sue for damages
under Chapter 93A for the Chapter 142A violations. The contractor
interpreted the words "pre-existing owner-occupied"
in Section 1 of Chapter 142A to mean that only homeowners
who physically occupied their houses before contracting for
improvements are entitled to the statute's protection. The
Appeals Court rejected this interpretation. The Court found
that the homeowner purchased the house for use as an owner-occupied
dwelling as soon as the work was done. The Court essentially
held that a brand new owner who has never occupied the building
satisfies the owner occupied requirement of Section 1 of Chapter
142A so long as the homeowner intends to occupy the building
when the work is complete.
It's time for the legislature to clear
up confusion by amending Chapter 142A so that follows the
Simas decision.
To contact a lawyer click
here, or call our offices in Boston seven days
a week at toll free 866-414-0400.
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