Eric Willison, Attorney at Law

Ripped Off On Home Improvement In Ohio?

In Ohio, the Home Sales Solicitation Act (HSSA) is Ohio Revised Code Section 1345.21 through 1342.28. If you have been ripped off by or are being sued by a home improvement contractor, you may want to take a close look at this statute.

First things first though. The statute covers you only if you meet certain criteria, which I will discuss immediately below.

A) You have to be a consumer. That means that the home improvement that you contracted for must be primarily for personal, family, or household use. If you contracted for replacement windows for your home, then you meet this part of the criteria. If you contracted for replacement windows for your rental property, then you don’t qualify for its protections.

B) A “home solicitation sale” is defined as a sale of consumer goods or services in which the seller or a person acting for him engages in a personal solicitation of the sale at your residence. This includes solicitations in response to or following an invitation by you to come out to your home to do the transaction if your agreement or offer to purchase is given to the seller or a person acting for him right there at your home.

If you are covered under the HSSA, the contract that you signed with the home improvement contractor must contain notice of your right to cancel the transaction during the next three business days. If you decide to cancel the work during the three day period, the notice of cancellation may be sent to the home improvement contractor in writing at the contractor’s address stated in the home improvement contract by mail, telegram, manual delivery, or other method of personal delivery.

If you mailed it, the notice is effective on the date of the postmark. If you sent a telegram, it is effective when you ordered the telegram. Manual delivery is effective when it gets to the home improvement contractor or his address, whichever is sooner. So long as your notice is in writing, it does not need to be in any particular form so long as it indicates your intention not to be bound by the contract you signed. This three day right to cancel is a very big deal.

This is because many home improvement contractors do not have the required three day notice to cancel in their contracts. Ohio Courts have ruled that if the mandatory language is not in the contract, then your right to cancel the deal remains. Think about that for a second. Your right to cancel the deal remains. It remains. Even though the home improvement contractor put in those replacement windows five months ago, and even though you paid for them upfront, you can still rescind the deal. And the home improvement contractor can’t come back out and take out the windows (as the old ones have doubtless been thrown out).

In the case of Clemons v. Duwell (1995), 100 Ohio App.3d 423, Ohio’s Second District Court of Appeals held that the home improvement contractor had to pay back the money to the buyer, and the buyer got to keep the improvements (in that case a bathroom rehab). The Court reasoned that this was not unjust enrichment of the consumer since the home improvement contractor bears “the risk of not recovering the goods he provided along with his services by beginning work under the contract while [the buyer] had the right to cancel.”

The same exact thing happened in the case of Hines v. Thermal-Gard of Ohio, Inc. (1988), 46 Ohio Misc.2d 11, only the subject of the transaction was replacement windows. The home improvement contractor installed the replacement windows, but the contract did not contain the three day notice to cancel. The home owner then cancelled the deal and demanded a refund of the purchase price. The Court allowed the cancellation, awarded the refund, and allowed the buyer to keep the replacement windows.

The Court in Hines reasoned that the buyer’s reasons for cancellation were not relevant, and that since the replacement windows could not be removed without damaging the home, the consumer’s continued retention of the windows installed by the home improvement contractor is as close as we can come to returning the parties back to their original circumstances (since the original windows no longer existed).

However, R.C. 1345.21(A) excludes certain types of transactions from coverage under the HSSA. The first three exceptions to the law don’t come up too often, but exclusions 4, 5, and 6 are often litigated:

1) The total purchase price to be paid by you to the seller, whether under single or multiple contracts, is less than $25.00;

2) The transaction was conducted entirely by phone or mail if you initiated the deal so long as there is no other contact between you and the seller or his representative(s) before the delivery of the goods or the performance of the service.

3) The final agreement between you and the seller was made during a prior visit to the seller’s retail business establishment which has a fixed and permanent location where the goods or services are exhibited to customers for sale on a continuing basis;

4) You initiated the contact with the seller for the purpose of negotiating the transaction and the seller has a retail business establishment which has a fixed and permanent location where the goods or services are exhibited to customers for sale on a continuing basis;

5) You initiate the contact with the seller and the goods or services are needed to meet a bona fide immediate personal emergency which will jeopardize the health, welfare, or safety of people or which will endanger property which you own or are responsible for and you give the seller a separate, dated, and signed statement describing the situation and waiving your three day notice to cancel rights.

6) You have initiated the contact between you and the seller and specifically requested the seller to come out and visit you at your home for the purpose of repairing or performing maintenance on your personal property. But, if the seller, while at your home, sells you additional goods and services which are not necessary to the repairs or maintenance he is doing, then these additional goods and services don’t fall within this exclusion.

You should also be aware that if you live in an area whose courts are governed by the holdings of Ohio’s Fourth District Court Appeals (mainly southeast Ohio), there is case law out there which states that the HSSA does not cover home improvements. But this case law is contrary to case law in almost every other Ohio Appellate District, and it is questionable whether the Fourth District would still adhere to this holding if the issue were brought to them again.