Chapter ATCP 110
HOME IMPROVEMENT PRACTICES
Prohibited trade practices.
Substituting products or materials; altering the written contract.
Delay in contract performance.
Home improvement contract requirements.
Preservation of buyer's claims and defenses.
Contract cancellation; return of payments.
Basement waterproofing practices.
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Chapter Ag 110 as it existed on May 31, 1974 was repealed and a new chapter Ag 110 was created, Register, May, 1974, No. 221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.
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. The term extends to the conversion of existing commercial structures into residential or non-commercial property. “Home improvement" does not include the construction of a new residence or the major renovation of an existing structure.
“Major renovation of an existing structure" means a renovation or reconstruction contract where the total price of the contract is more than the assessed value of the existing structure at the time the contract is initiated.
“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; CR 13-066
: am. (2), cr. (2m) Register March 2014 No. 699
, eff. 6-1-14.
ATCP 110.02 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.
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.
Advise or induce the buyer to inflate the value of the buyer's property or assets, or to misrepresent or falsify the buyer's true financial position in order to obtain credit.
Increase or falsify the contract price, or induce the buyer by any means to misrepresent or falsify the contract price or value of the home improvement for financing purposes or to obtain additional credit.
Where the buyer requests lien waivers under s. ATCP 110.025 (2)
, fail to give or furnish to the buyer lien waivers in writing from all contractors, subcontractors, and material suppliers at, or prior to, the time final payment is made on the home improvement contract.
Where partial payments are required at various stages in the performance of the contract, and the buyer requests lien waivers under s. ATCP 110.025 (2)
, fail to give or furnish to the buyer lien waivers in writing from all contractors, subcontractors, and material suppliers for the proportionate value of all labor, services, and products or materials furnished or delivered as of the time partial payment is made.
Fail to provide notice to a buyer as required under s. ATCP 110.025 (1)
, before the buyer enters into a home improvement contract, that the buyer is entitled to receive written lien waivers.
Misrepresent that the seller is the only person who can provide financing for the home improvement contract.
Deliver materials, begin work, or use any other tactic to pressure the buyer into a home improvement contract, or make any claim or assertion that a binding contract has been agreed upon where no final agreement or understanding exists.
Solicit or accept any payment for home improvement materials or services which the seller does not intend to provide according to the terms of the home improvement contract, or which the seller has reason to believe will not be provided according to the terms of the contract.
Make false derogatory statements concerning any competitor, the competitor's equipment, products or materials, workmanship, performance, reputation or responsibility, or attempt to or induce the breach of any existing home improvement contract between a prospective buyer and a competitor, or interfere with or obstruct the performance of any home improvement contract by a competitor.
Misrepresent that the work of a competitor was performed by the seller.
Misrepresent that the seller's products, materials, or workmanship are equal to or better than those of a competitor.
Use or imitate the trade-marks, trade names, labels, or other distinctive marks of a competitor.
Misrepresent or mislead the buyer into believing that a purchase will aid or help some public, charitable, religious, welfare, or veteran's organization, or any other person, group, or organization, or misrepresent the extent of such aid or assistance.
Fail to make any statement of fact, qualification, or explanation if the omission of such statement, qualification, or explanation causes an advertisement, announcement, statement, or representation to be false, deceptive, or misleading.
Misrepresent that the customer's present equipment, material, product, home, or a part thereof, is dangerous or defective, or in need of repair or replacement.
(10) Misappropriation of buyer's prepayments.
Use any home improvement contract payment, received from a buyer prior to the completion of a home improvement, for any purpose other than to provide materials or services for the home improvement.
(11) Misrepresentations; general.
Make any false, deceptive, or misleading representation in order to induce any person to enter into a home improvement contract, to obtain or keep any payment under a home improvement contract, or to delay performance under a home improvement contract.
ATCP 110.02 History
Cr. Register, May, 1974, No. 221
, eff. 6-1-74; am. (7) (b) and cr. (9) (c), Register, March, 1976, No. 243
, eff. 4-1-76; corrections in (6) made under s. 13.93 (2m) (b) 5., Stats., Register, April, 1993, No. 448
; cr. (4) (d), (6) (n) and (o), (10) and (11), am. (3) (d), (6) (g) and (h) and (7) (c), r. and recr. (7) (b), Register, September, No 453
, eff. 10-1-93; CR 01-028
: am. (3) (d) and (7) (c), Register September 2001 No. 549
, eff. 10-1-01; CR 13-066
: r. (3) (d), am. (6) (L) to (n), r. (7) (c) Register March 2014 No. 699
, eff. 6-1-14.
ATCP 110.023 Substituting products or materials; altering the written contract. ATCP 110.023(1)(1)
No seller may 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. Except as provided in sub. (2)
, 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.
ATCP 110.023 Note
According to s. 137.15 (3)
, Stats., “If a law requires a record to be in writing, an electronic record satisfies that requirement in that law."
(2) Verbal authorization.
The seller may act on alterations to the contract that are verbally authorized by the buyer, if all the following conditions are met:
The alteration does not represent any additional cost to the buyer.