In last month's newsletter, we discussed tips on how a Manager and Board may secure a contract that best protects the interests of the association. However, what if your association has already entered into a contract with a vendor who has strayed from its' obligations or the association wants out of a contract for financial or other reasons?
Your association may be able to claim that a contract is void due to noncompliance of the Pennsylvania Home Improvement Consumer Protection Act (HICPA). HICPA, which became effective as of July 1, 2009, mandates the form and content of certain contracts. HICPA applies to contractors who perform over $5,000 of home improvement business annually. "Home improvement" is defined broadly and includes contractors who engaged in work, such as the repair, replacement, remodeling, removal and renovation of items such as driveways, swimming pools, roofs and siding. While HICPA does not apply to landscaping services in all cases, it does apply if a landscaper is involved in providing certain other services, such as those mentioned above.
Specifically, landscapers will fall within the purview of HICPA if they are involved with lighting systems, non-decorative fences, concrete walkways, windows, doors or the installation of retaining walls, fountains or drainage systems.
HICPA mandates a significant number of requirements for home improvement contracts and also provides a list of provisions which, if included in a contract, will provide the consumer (i.e., the association) with the ability to void a contract. Therefore, if the contract form that a business has been utilizing does not contain required information, it should be revised. For example, HICPA requires that all contracts contain the contractor's registration number with the Bureau of Consumer Protection and identify that the contractor agrees to maintain insurance. Additionally, HICPA prohibits a contractor from including a provision within a contract allowing for an award of attorneys' fees and costs; although the consumer still has the ability to receive attorneys' fees and costs.
While HICPA's applicability to associations has yet to be tested, it is likely that it does apply to association contracts, as it is designed to provide a consumer with the above protections and beyond those set forth in Pennsylvania's Unfair Trade Practices and Consumer Protection law, which does apply to associations. As such, you may wish to have counsel review your contracts to ensure compliance with HICPA, particularly if your association has an interest in voiding or revising a contract with a vendor.
Your association may be able to claim that a contract is void due to noncompliance of the Pennsylvania Home Improvement Consumer Protection Act (HICPA). HICPA, which became effective as of July 1, 2009, mandates the form and content of certain contracts. HICPA applies to contractors who perform over $5,000 of home improvement business annually. "Home improvement" is defined broadly and includes contractors who engaged in work, such as the repair, replacement, remodeling, removal and renovation of items such as driveways, swimming pools, roofs and siding. While HICPA does not apply to landscaping services in all cases, it does apply if a landscaper is involved in providing certain other services, such as those mentioned above.
Specifically, landscapers will fall within the purview of HICPA if they are involved with lighting systems, non-decorative fences, concrete walkways, windows, doors or the installation of retaining walls, fountains or drainage systems.
HICPA mandates a significant number of requirements for home improvement contracts and also provides a list of provisions which, if included in a contract, will provide the consumer (i.e., the association) with the ability to void a contract. Therefore, if the contract form that a business has been utilizing does not contain required information, it should be revised. For example, HICPA requires that all contracts contain the contractor's registration number with the Bureau of Consumer Protection and identify that the contractor agrees to maintain insurance. Additionally, HICPA prohibits a contractor from including a provision within a contract allowing for an award of attorneys' fees and costs; although the consumer still has the ability to receive attorneys' fees and costs.
While HICPA's applicability to associations has yet to be tested, it is likely that it does apply to association contracts, as it is designed to provide a consumer with the above protections and beyond those set forth in Pennsylvania's Unfair Trade Practices and Consumer Protection law, which does apply to associations. As such, you may wish to have counsel review your contracts to ensure compliance with HICPA, particularly if your association has an interest in voiding or revising a contract with a vendor.
