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October 1, 2016

One of the central purposes for all good governments is to pass laws for the protection of that government’s citizens. Illinois has a number of statutes on the books that are designed to do just that. One of the oldest laws in our state is the Mechanics’ Lien Act (MLA). The MLA is designed to offer protection to contractors that furnish labor, materials, or both, for the improvement of someone else’s property. If the property owner does not pay, the contractor can obtain a lien against the property to secure payment of the amount owed. Under the MLA, a contractor’s right to a lien can be based on any type of a contract between the contractor and property owner. It does not matter if the contract is written, verbal, or even implied (if the owner allows the contractor to perform work on the property without objecting, the owner cannot claim later that he or she does not have to pay ‑ in some circumstances, the owner’s silence constitutes consent).

More recently, the State of Illinois enacted a statute called the Home Repair and Remodeling Act (HRRA). The HRRA is designed to protect homeowners from unscrupulous contractors. For example, if the homeowner’s property has been damaged by fire or another type of catastrophe, sometimes the homeowner is so distraught, all he or she can think of is getting the home repaired. There are unethical contractors that prey on these people in a moment of weakness, and then wind up performing shoddy work or overcharging for the work that is actually done. Under the HRRA, a contractor that is engaged in the business of home repair or remodeling must I) furnish a written contract that states the total cost, including parts and materials with reasonable particularity, 2) give the homeowner a pamphlet that has been prepared by the State of Illinois entitled “Home Repair: Know Your Consumer Rights”, and 3) if the work is valued at $1,000.00 or more, the homeowner must sign the contract before any work is done.

Both laws appear to be reasonable on their face, and both are designed to protect different party’s interests. But what happens when the laws themselves appear to be in conflict? The MLA says that a contractor can have a lien based on a verbal or implied contract, but under the HRRA, if the contract is for $1,000.00 or more, the contractor is not to begin any work unless the homeowner signs a contract.

Last month, a homeowner tried to raise the HRRA as a defense to a mechanics’ lien foreclosure suit that we filed for one of our clients. Our client had performed work for the homeowner over a period of several months. The homeowner had made a progress payment to our client. Our client had furnished written estimates for the work, but had not obtained the homeowner’s signature on a contract, nor did he recall if he furnished the pamphlet regarding home repairs. When the work was completed, the homeowner refused to pay the balance that was owed. We filed suit to help our client collect the money owed. The homeowner moved to have the complaint dismissed, claiming that our client had violated the HRRA, and therefore, that the lien was invalid.

The court agreed with our argument that when the legislature enacts one law, it cannot be presumed that it intended to overturn another law, unless that intent is specifically spelled out in the new law.

When the language of a statute is clear and unambiguous, the court should not add exceptions, limitations, or conditions that the legislature did not express, and the court should interpret the statute as a whole so that no term is rendered meaningless. The MLA clearly states that a lien can be based on any type of contract, whether written, verbal or in some cased, implied. To allow a homeowner to say that because the contract was not in writing the contractor cannot have a lien would fly in the face of the clear language used in the MLA that says the contract does not have to be written. The homeowner’s reading of the HRRA would render some of the language used in the MLA meaningless. The trial court therefore denied the homeowner’s motion to dismiss our complaint.

Unfortunately, we are left in a bit of a gray area, with no Illinois Appellate or Supreme Court decisions to help us through this area of potential conflict. An Appellate Court downstate heard a similar case last year, but gave no definitive answer: It merely sent the case back to the trial judge and asked him to use his best judgment to decide what impact the HRRA may have on a lien claim. Trial courts are not compelled to follow each other’s decisions, and although the opinion of one trial judge may be persuasive to another, there is no guarantee that one trial court will follow another’s decision.

It therefore seems prudent for any contractor that is involved in any repair, or even remodeling work (i.e. putting on an addition, updating a kitchen, etc.) directly for a homeowner to (1) furnish detailed written estimates for the work, (2) to give the homeowner the pamphlet regarding consumer rights (which can be obtained free of charge at), and (3) to require the homeowner to sign a contract before any work is done.  Until the legislature or the courts reconcile these two laws, it is better to be safe than sorry.