ATCP 110.05 History
Cr. Register, May, 1974, No. 221
, eff. 6-1-74; am. (2) (intro.), (3) and (6), r. (9), Register, September, 1993
, no. 453, eff. 10-1-93; CR 01-028
: am. (2) (intro.), Register September 2001 No. 549
, eff. 10-1-01; CR 13-066: am. (4), (7) Register March 2014 No. 699, eff. 6-1-14.
Preservation of buyer's claims and defenses. ATCP 110.06(1)(1)
Every assignee of a home improvement contract takes subject to all claims and defenses of the buyer or successors in interest.
ATCP 110.06 Note
Note: Under this section, where the seller assigns the debt to a finance company before completing the contract and then fails to complete the contract, the finance company is subject to the same claims and defenses the buyer has against the contractor.
No seller shall enter into any home improvement contract wherein the buyer waives the right to assert against the seller or any assignee any claim or defense the buyer may have against the seller under the contract.
No seller shall use any promissory note or instrument, other than a check, in connection to a home improvement contract unless it bears the following statement in contrasting bold-face type: "This is a home improvement instrument and is non-negotiable. Every holder takes subject to claims and defenses of the maker or obligor."
Every holder or transferee of a negotiable instrument executed in violation of this section, who knew or should have known at the time the document was acquired that it was made to evidence an obligation for home improvements, or who knew or should have known that the payee or transferor was engaged in the home improvement business, takes subject to all claims and defenses of the maker or obligor.
Claims and defenses of any buyer against an assignee or transferee under the contract shall be limited to the total amount for which the buyer was obligated at the time of entering into the contract.
ATCP 110.06 History
Cr. Register, May, 1974, No. 221
, eff. 6-1-74; correction in (1) made under s. 13.93 (2m) (b) 5., Stats., Register, April, 1993, No. 448
Contract cancellation; return of payments. ATCP 110.07(1)(1)
Conditions warranting exercise of buyer's remedies.
If, under a home improvement contract, a buyer pays a seller for any home improvement materials or services before the seller provides those materials or services to the buyer, the buyer may proceed under sub. (2)
if any of the following occurs:
The seller fails to provide the materials or services by a deadline specified in the home improvement contract.
The seller fails to give buyer notice of an impending delay as required under s. ATCP 110.02 (7) (c)
, or fails to obtain the buyer's agreement to a new performance deadline.
ATCP 110.07 Note
Note: Section ATCP 110.02 (7) (c) specified that it was a prohibited unfair trade practice for a seller to fail to give the buyer timely notice of any impending delay in contract performance, if performance will be delayed beyond the deadline specified in the contract. Effective May 1, 2014, s. ATCP 110.02 (7) (c) is repealed and s. ATCP 110.027 (1) is created. Section ATCP 110.027 (1) requires sellers to give buyers timely notice of any impending delay in the home improvement contract performance if performance will be delayed beyond a specified deadline.
The buyer believes that the seller has failed to provide the materials or services in a timely manner, and the home improvement contract specifies no deadline for the seller to provide the materials or services.
(2) Buyer's remedies.
If the conditions under sub. (1)
are met, the buyer may do all of the following:
Demand return of all payments which the seller has not yet expended on the home improvement.
If the seller has used any of the buyer's payments to purchase materials for the home improvement, demand delivery to the home improvement site of those materials which have not yet been used for the home improvement or delivered to the site.
Demand a written accounting for all payments that the buyer made to the seller. The written accounting shall detail how all payments were used by the seller.
(3) Buyer's exercise of remedies; procedure.
In order to exercise any remedy under sub. (2)
, the buyer shall deliver written notice to the seller, or to the seller's officer, director, or agent. Notice shall be delivered in person, by certified mail to the seller's last known address, or by regular mail with evidence of mailing to the seller's last known address. If notice is mailed to the seller, the date on which the post office receives the notice for delivery is considered the date of service for purposes of sub. (4)
. Compliance with this subsection is not a prerequisite to the buyer's exercise of other remedies other than those specified under sub. (2)
If the buyer demands the return of payments to which the buyer is entitled under sub. (2) (b)
, the seller shall return those payments to the buyer within 15 calendar days after the buyer's demand is served on the seller under sub. (3)
If the buyer demands delivery of materials to which the buyer is entitled under sub. (2) (c)
, the seller shall deliver those materials to the home improvement site within 15 calendar days after the buyer's demand is served on the seller under sub. (3)
, or within 5 calendar days after the seller receives the materials from the seller's supplier, whichever occurs later.
If the buyer demands an accounting to which the buyer is entitled under sub. (2) (d)
, the seller shall provide the buyer with the written accounting within 30 calendar days after the buyer's demand is served on the seller under sub. (3)
(5) Remedies not exclusive.
A buyer's remedies under this section are in addition to any other legal remedies available to the buyer. They are not a prerequisite to the exercise of any other remedies, nor do they limit any other remedies.
ATCP 110.07 History
Cr. Register, September, 1993, No. 453
, eff. 10-1-93.
A home improvement contract which constitutes a "consumer approval transaction" as defined in s. 423.201
, Stats., shall comply with ch. 423, Stats.
ATCP 110.08 History
Cr. Register, September, 1993, No. 453
, eff. 10-1-93.
Basement waterproofing practices. ATCP 110.09(1)(1)
Declaration of policy.
Basement water problems and particularly those arising from poor drainage or high water tables are often difficult to correct without a thorough analysis of causative factors and the performance of extensive and costly waterproofing services. The effectiveness of such services, unlike many other services, cannot readily be determined until heavy rains or other conditions responsible for basement water problems occur. In the performance of basement waterproofing services certain methods or processes have been used at substantial cost to the consumer which are ineffective, inadequate, or unsuitable for the correction of basement water problems. Guarantees, if given, may often be vague, ambiguous, or unenforceable against the seller, or otherwise made without reasonable expectancy of performance on the part of the seller to the detriment of the buyer. These and other abuses in the sale of basement waterproofing services are contrary to the public interest and are unfair trade practices and unfair methods of competition prohibited under s. 100.20
"Advertising" means any oral, written, printed, or graphic statement or representation made in connection with the solicitation or sale of basement waterproofing services.
"Basement waterproofing" means the use or application of materials or processes for the prevention or control of water leakage or flow through the basement walls or flooring into the interior portion of a basement.
"Engineer's analysis" means a written report from a professional engineer registered in the state of Wisconsin containing an analysis of soil conditions, water tables or pressure, and other factors or conditions affecting the existence and correction of basement water problems, and an opinion as to the probability that the process and the particular substances or materials which are to be used in the performance of basement waterproofing services will or will not cure the basement water problem or have a significant waterproofing effect.
"Pressure pumping" means a basement waterproofing process by which a substance is injected into the ground adjacent to the basement walls or beneath the basement foundation or floor by pipes or other conduits for the purpose of protecting or sealing the basement walls, foundation, or floors against water penetration.
"Seller's analysis" is a written statement by the seller of the causes and conditions responsible for the buyer's basement water problem and the specific processes and materials to be used in correcting the problem.
"Guarantee" means any promise, made by or on behalf of the seller in connection with the sale of basement waterproofing services, which provides that the seller's services, materials, or workmanship are defect free or will meet a specified level of performance over a specified period of time, or which provides that the seller will correct, repair, service, replace, make refunds for, or otherwise remedy any systems, problems, defects, or malfunctions that relate to or arise out of basement waterproofing services. The term includes service contracts or agreements made by or on behalf of the seller in connection with a basement waterproofing contract under which the seller provides or agrees to perform, over a fixed or extended period of time, basement waterproofing inspection, maintenance, or repair services, whether or not a separate or additional charge is made for such services.
(3) Prohibited practices.
No seller of basement waterproofing services, products, or materials shall engage in the following unfair trade practices or unfair methods of competition:
Make or offer to make any guarantee with respect to basement waterproofing services unless the guarantee meets the requirements of sub. (4)
, and is furnished to the buyer in writing with a seller's analysis prior to final execution of any contract.
Make any guarantee the seller knows or reasonably ought to know cannot be performed or which exceeds the period of time the seller or other persons obligated under the guarantee may be able to honor or perform under the guarantee.
Submit a seller's analysis to the buyer which the seller knows or reasonably ought to know is founded on incorrect facts or conclusions.
Enter into a basement waterproofing contract which provides, in whole or in part, for the performance of services which the seller knows or reasonably ought to know are unnecessary or will not materially serve to correct the buyer's basement water problem, unless such unnecessary or noncorrective services are separately and distinctly identified and enumerated in the seller's analysis, or an amendment thereto, provided to the buyer prior to execution of a basement waterproofing contract.
Advertise basement waterproofing services in a manner which explicitly states or otherwise suggests or implies that such services will be guaranteed, unless they are in fact guaranteed and a copy of the guarantee is furnished to the buyer in connection with any basement waterproofing contract.
Advertise that basement waterproofing services of the seller are or will be effective unless the seller is experienced in and uses basement waterproofing methods generally recognized as being effective for the prevention or control of basement water problems in the basement waterproofing industry.
Sell basement waterproofing services using the pressure pumping method unless the need or effectiveness of such method is established in a seller's analysis verified by an engineer's analysis furnished to the buyer prior to the sale, and the work is guaranteed as provided under sub. (4)
Advertise basement waterproofing services using the pressure pumping process without disclosing in the advertisement that an engineer's analysis recommending this process is required as a condition to the use thereof, and must be furnished to the buyer before a contract is signed.
Enter into any contract for basement waterproofing services which does not contain all agreements, promises, or representations made with respect to such services, and which is not in writing and signed by the buyer and seller.
Fail to provide, in all instances where the seller's basement waterproofing services are not guaranteed, the following disclaimer, which shall be set forth on the face of the contract, separate and apart from all other contract provisions, and in bold face type: "THE BASEMENT WATERPROOFING SERVICES PROVIDED BY THIS CONTRACT ARE NOT GUARANTEED."
All guarantees shall be furnished to the buyer in writing prior to the final execution of any contract and include the name and address of the seller or person responsible for performance under the guarantee. Guarantees shall be considered part of the basement waterproofing contract and any breach in the terms or conditions thereof shall entitle the buyer to a full refund of money paid under the contract, less the value of benefits actually derived from the performed services. The burden of establishing any benefit to the buyer shall be on the seller.
All guarantees shall be set forth in clear and explicit terms and shall fully guarantee that the work or services to be performed will effectively prevent or control the basement water problem they were designed or intended to prevent or control for the period of time specified in the guarantee. Basement dampness may be excluded from the guarantee if agreed to by the buyer in writing and the guarantee or contract contains the following statement in bold face type: "THE GUARANTEE PROVIDED HEREIN DOES NOT COVER DAMPNESS ON THE BASEMENT WALLS—IT DOES COVER ANY WATER LEAKAGE OR FLOW."
All guarantees shall contain a provision that any remedial work or services to be performed under the guarantee shall begin within 45 days and be completed within 6 months after notice by the buyer to the seller of any failure of the waterproofing services under the contract. Notice of any claim by the buyer under the guarantee shall be deemed actual notice if mailed by certified mail to the seller's address as set forth in the guarantee.
(5) Seller's analysis.
Sellers of basement waterproofing services shall prepare and furnish to the buyer a signed copy of the seller's analysis prior to the final execution of any basement waterproofing contract.
ATCP 110.09 History
History: CR 13-066: cr. (title), (1) renum. from s. ATCP 111.01, (2) renum. from s. ATCP 111.02 (title), (1) to (4), (6), (7), (3) (intro.), (a) renum. from s. ATCP 111.03 (intro.), (1) and am., (3) (b) to (f) renum. from s. ATCP 111.03 (2) to (6), (3) (g) renum. from s. ATCP 111.03 (7) and am., (3) (h) to (j) renum. from s. ATCP 111.03 (8) to (10), (4) renum. from s. ATCP 111.04, (5) renum. from s. ATCP 111.05 Register March 2014 No. 699, eff. 6-1-14; corrections in (3) (a), (g) made under s. 13.92 (4) (b) 7., Stats., Register March 2014 No. 699.