Alan Secures Favorable Trial Decision in Two Issues of First Impression In Homeowner-Contractor

Alan has scored a major victory following a jury-waived trial where he represented a homeowner who had claimed to be the victim of unfair business practices by contractor.

After five days of trial, the court found that the contractor violated Chapter 93A, the Massachusetts law that prohibits “unfair and deceptive practices” by businesses against consumers.

Alan’s client hired a contractor to renovate her home. The contractor had a construction supervisor’s license but was not registered as a home improvement contractor (HIC). All contractors performing home improvement work are required to be registered with the Massachusetts Office of Consumer Affairs and Business Regulation (OCABR).

Registered contractors automatically consent to have disputes with homeowners arbitrated through OCABR, a proceeding that costs substantially less and that is far faster than traditional court litigation. Alan argued that the failure of the defendant contractor to be registered deprived his client of the right to OCABR arbitration, and that this constituted an “injury” under Chapter 93A.

The court agreed, finding that OCABR arbitration is an “important right” that homeowners can exercise when dealing with contractors.

The court also found that the signed affidavit that was required as a condition of issuance of a building permit by the town where the client’s house was located did not constitute a waiver of the homeowner’s rights to arbitration.

The affidavit had language stating that “homeowners who pull their own permits waive arbitration…” through OCABR. The permit ended up being issued in the homeowner’s name, though the contractor, by his own admission, was the sole liaison with the town building department. The court found that the affidavit was not a “forcible waiver” because towns do not have authority to force homeowners to waive OCABR arbitration rights.

The court also found that the contractor abandoned the project, another violation of Chapter 93A. Much of the trial focused on what the contractor was actually owed, and the court ultimately found that the contractor walked off the project having been owed slightly less than $2,000 on a project with total payments of about $180,000. The court found that the contractor was not justified in leaving the project. The contractor claimed that he had returned to the site, but the court found that claim not to be credible.

The homeowner is eligible to recover attorney’s fees incurred in connection with the case.

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