Register October 2004 No. 586
Chapter ATCP 110
HOME IMPROVEMENT PRACTICES
Prohibited trade practices.
Home improvement contract requirements.
Preservation of buyer's claims and defenses.
Contract cancellation; return of payments.
Ch. ATCP 110 History
Chapter Ag 110 as it existed on May 31, 1974 was repealed and a new chapter Ag 110 was created, Register, May, 1974, No. 221
, effective June 1, 1974; chapter Ag 110 was renumbered chapter ATCP 110 under s. 13.93 (2m) (b) 1., Stats., Register, April, 1993, No. 448
Ch. ATCP 110 Note
This chapter is adopted under authority of s. 100.20 (2)
, Stats., and is administered by the Wisconsin department of agriculture, trade and consumer protection. Violations of this chapter may be prosecuted under s. 100.20 (6)
, 100.26 (3)
, Stats. A person who suffers a monetary loss because of a violation of this chapter may sue the violator directly under s. 100.20 (5)
, Stats., and may recover twice the amount of the loss, together with costs and reasonable attorneys' fees.
"Buyer" means either of the following persons who is a party or prospective party to a home improvement contract:
The owner of residential or noncommercial property to which the home improvement contract pertains.
The tenant or lessee of residential or noncommercial property to which the home improvement contract pertains if the tenant or lessee is or will be obligated to make a payment under the home improvement contract.
"Home improvement" means the remodeling, altering, repairing, painting, or modernizing of residential or non-commercial property, or the making of additions thereto, and includes, but is not limited to, the construction, installation, replacement, improvement or repair of driveways, sidewalks, swimming pools, terraces, patios, landscaping, fences, porches, garages, basements and basement waterproofing, fire protection devices, heating and air conditioning equipment, water softeners, heaters and purifiers, wall-to-wall carpeting or attached or inlaid floor coverings, and other changes, repairs or improvements made in or on, attached to or forming a part of the residential or non-commercial property, but does not include the construction of a new residence. The term extends to the conversion of existing commercial structures into residential or non-commercial property.
"Residential or non-commercial property" means a structure used, in whole or in part, as a home or place of residence by any natural person, whether or not a single or multi-unit structure, and that part of the lot or site on which it is situated and which is devoted to the residential use of the structure, and includes all appurtenant structures. The term extends to all other existing non-commercial structures and the immediate premises on which they are situated even though they are not used for residential purposes.
"Home improvement contract" means an oral or written agreement between a seller and an owner or a seller and a tenant or lessee of residential or non-commercial property, or a seller and a tenant or lessee if the tenant or lessee is to be obligated for the payment of home improvements made in, to, or upon such property, and includes all agreements under which the seller is to perform labor or render services for home improvements, or furnish materials in connection therewith.
"Seller" means a person engaged in the business of making or selling home improvements and includes corporations, partnerships, associations and any other form of business organization or entity, and their officers, representatives, agents and employees.
"Warranty" means any warranty or guarantee made with respect to labor, services, products or materials provided under a home improvement contract. "Warranty" includes a seller's warranty and a manufacturer's product warranty.
ATCP 110.01 History
Cr. Register, May, 1974, No. 221
, eff. 6-1-74; renum. (1) to (4) to be (2) to (5), cr. (1) and (6), Register, September, 1993, No. 453
, eff. 10-1-93.
Prohibited trade practices.
No seller shall engage in the following unfair methods of competition or unfair trade practices:
(1) Model home representations.
Misrepresent or falsely state to a prospective buyer that the buyer's residential or non-commercial property is to serve as a "model" or "advertising job", or use any other prospective buyer lure to mislead the buyer into believing that a price reduction or other compensation will be received by reason of such representations.
(2) Production and material representations.
Misrepresent directly or by implication that products or materials to be used in the home improvement:
Need no periodic repainting, finishing, maintenance or other service.
Are of a specific or well-known brand name, or are produced by a specific manufacturer or exclusively distributed by the seller.
Are of a specific size, weight, grade or quality, or possess any other distinguishing characteristics or features.
Perform certain functions or substitute for, or are equal in performance to, other products or materials.
Meet or exceed municipal, state, federal, or other applicable standards or requirements.
Are approved or recommended by any governmental agency, person, form or organization, or that they are the users of such products or materials.
Are of sufficient size, capacity, character or nature to do the job expected or represented.
Are or will be custom-built or specially designed for the needs of the buyer.
May be serviced or repaired within the buyer's immediate trade area, or be maintained with replacement and repair parts which are readily available.
Offer or represent specific products or materials as being for sale, where the purpose or effect of the offer or representation is not to sell as represented but to bait or entice the buyer into the purchase of other or higher priced substitute products or materials.
Disparage, degrade or otherwise discourage the purchase of products or materials offered or represented by the seller as being for sale, by statements or representations in conflict with other claims or representations made with respect to such products and materials, to induce the buyer to purchase other or higher priced substitute products or materials.
Refuse to show, demonstrate or sell products or materials as advertised, offered, or represented as being for sale.
Substitute products or materials for those specified in the home improvement contract, or for those which the seller represented would be used in the home improvement, without the prior consent of the buyer. If a written home improvement contract is required under s. ATCP 110.05 (1)
or the buyer signs a written contract, the buyer's consent under this paragraph shall also be in writing.
Fail to have available a quantity of the advertised product sufficient to meet reasonably anticipated demands.
Misrepresent that certain products or materials are unavailable or that there will be a long delay in their manufacture, delivery, service or installation in order to induce a buyer to purchase other or higher priced substitute products or materials from the seller.
Deceptively gain entry into the prospective buyer's home or onto the buyer's property under the guise of any governmental or public utility inspection, or otherwise misrepresent that the seller has any official right, duty or authority to conduct an inspection.
Misrepresent that the seller is an employee, officer or representative of a manufacturer, importer or any other person, firm or organization, or that such person, firm or organization will assume some obligation in fulfilling the terms of the contract.
Misrepresent the status, authority or position of the sales representative in the organization he or she represents.
Misrepresent that the seller is licensed, bonded or insured. If the seller represents that the seller is licensed, bonded or insured, the seller shall provide the buyer with a written statement specifically describing the type of license, bond or insurance that the seller possesses.
(5) Gift offers.
Offer or advertise any gift, free item or bonus without fully disclosing the terms or conditions of the offer, including expiration date of the offer and when the gift, free item or bonus will be given, or fail to comply with the terms of such offer.
Misrepresent to a prospective buyer that an introductory, confidential, close-out, going out of business, factory, wholesale, or any other special price or discount is being given, or that any other concession is made because of materials left over from another job, a market survey or test, or any other reason.
Misrepresent that any person, firm or organization, whether or not connected with the seller, is especially interested in seeing that the prospective buyer gets a bargain, special price, discount or any other benefit or concession.
Misrepresent or mislead the prospective buyer into believing that insurance or some other form of protection will be furnished to relieve the buyer from obligations under the contract if the buyer becomes ill, dies, or is unable to make payments.
Misrepresent or mislead the buyer into believing that no obligation will be incurred because of the signing of any document, or that the buyer will be relieved of some or all obligations under the contract by the signing of any document.
Request the buyer to sign a completion slip or certificate, or make final payment on the contract before the home improvement is completed in accordance with the terms of the contract.
Fail to disclose that the offered or contract price does not include delivery or installation, or that other requirements must be fulfilled by the buyer as a condition to the performance of labor, services, or the furnishing of products or materials at the offered or contract price.
Misrepresent that the down payment or any other sum constitutes the full amount the buyer will be obligated to pay.
Misrepresent or fail to disclose to a buyer, before the buyer enters into a home improvement contract, the existence or amount of any financing charges, interest service charges, credit investigation costs, building or installation permit fees, or other costs or charges to be paid by the buyer.
Fail to disclose that the home improvement contract, promissory note or other evidence of indebtedness may be assigned or sold to a financial institution or any other third party.