By: Lucy Kirschinger

During my career, I’ve been involved in several pieces of litigation. Usually, every piece of litigation is unique to the parties and to their particular circumstances. The only thing that is not unique is that oftentimes the business owner fails to abide by the very law that governs his or her business.

For example, when a general contractor enters into a contract to repair or remodel a home over the repair cost of $1,000, then that contractor must not only enter into a contract with the homeowner prior to proceeding on the project but must also provide the homeowner with the State of Illinois Home Repair and Remodeling Act pamphlet. See 815 ILCS 513 § 1, et seq. The pamphlet describes the homeowners’ right to cancel as well as discuss acceptable contract terms. www.ag.state.il.us/consumers/index.homeact.html [It should be noted that the Home Repair and Remodeling Act does not apply to subcontractors.]

The purpose of the written contract requirement is to protect consumers from “fly by night” deceptive contractors. Although failure to obtain a written contract will not necessarily deem an oral contract for home remodeling over $1,000 unenforceable, it may expose the contractor to a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act [815 ILCS 505 § 1] as well as subject the contractor to an uphill legal battle to obtain relief.

A contractor, subcontractor or material suppliers may still be able to recover under their claims pursuant to the Illinois Mechanics Lien Act. See 770 ILCS 60 § 0.01, et seq. The purpose of the Mechanics Lien Act is to protect contractors, subcontractors or material suppliers who provide labor and/or materials for the benefit of an owner’s property by permitting them a lien on the property so that they may recover the monetary benefits conferred upon the property’s owner. It should be noted that the Illinois Mechanics Lien Act applies to both commercial and residential property.

Generally, the Illinois Mechanics Lien Act is strictly construed. A clerical error in a statement of claim for lien, however, will not defeat the Mechanics Lien when the error is clearly a clerical error. The failure to provide a Mechanics Lien notice that meets the statutory requirements governing the form and substance of the Mechanics Lien Act notice requirements may render the notice a nullity and unenforceable. If you are involved with situations that may involve either the Illinois Home Repair and Remodeling Act or the Illinois Mechanics Lien Act, then know your rights and responsibilities before you jeopardize your business.