W. Va. Code R. § 142-5-3

Current through Register Vol. XLI, No. 25, June 21, 2024

Section 142-5-3 - Home Improvement Transactions

3.1. In connection with any home improvement transaction, and without limitation by enumeration, it is an unfair or deceptive act or practice for any seller to:

3.1.1. Fail to provide the buyer a written contract, describing in an meaningful way, and in "plain language" as required by W. Va. Code '46A-6-109, the goods or services purchased, the contract price together with all required financing information or credit terms and any other material terms as required by these rules or agreed to by the parties: Provided, however, That where the contract price is to be calculated on a "cost plus" basis, this fact shall be clearly and conspicuously set forth along with the method of calculating additions to cost and a good faith estimate of the eventual contract price;

3.1.2. Fail to provide an approximate completion date for all construction or improvements in the written contract unless the contract clearly and conspicuously discloses that no completion date is provided;

3.1.3. Fail to fill in all the relevant blank spaces in the written contract before it is signed by the buyer;

3.1.4. Fail to include the home improvement contractor's name, address, and telephone number on the contract;

3.1.5. Fail to include in the contract proper notification of the buyer's right to rescind if required pursuant to fifteen (15) U.S.C. '1635 and twelve (12) C.F.R. '226.15;

3.1.6. Fail to include in the contract all affirmations of fact, promises or description which constitute express warranties under the terms of W. Va. Code '46-2-313, or would so constitute express warranties if the sale of goods only were involved;

3.1.7. Disclaim, exclude, modify or otherwise attempt to limit any warranty, including the warranties of merchantability and fitness for a particular purpose, or to exclude, modify or attempt to limit any remedy provided by law, including the measure of damages available, for a breach of warranty, express or implied;

3.1.8. Fail to substantially perform the home improvement contract, absent material breach by the buyer, or to deviate from or disregard plans or specifications in any material respect without the written consent of the buyer;

3.1.9. Make any misrepresentation in the promotion, advertisement or sale of a home improvement contract or make any false promise of a character likely to influence, persuade or induce;

3.1.10. Represent to a prospective buyer that his dwelling or building is to serve as a lure for prospective buyers, "model home," "advertising job" or other similar inducement, and that a reduced price is offered for that reason, if such is not the case;

3.1.11. Violate the prohibition on referral sales in W. Va. Code '46A-2-110;

3.1.12. Fail to complete the home improvement by the completion date as stated in the home improvement contract unless such home improvement is delayed by events beyond the home improvement contractor's control or the buyer has agreed in writing to a later date;

3.1.13. Attempt to induce a buyer to sign any certificate or completion form before such home improvement or home construction is actually completed;

3.1.14. Fail to disclose that any goods being offered need additional attachments or fixtures in order to perform the functions claimed for them by the seller;

3.1.15. Unfairly or deceptively induce or persuade a buyer or prospective buyer to sign any writing when the seller knows or has reason to know that the buyer or prospective buyer is unable to read or write, or does not understand the terms of the instrument;

3.1.16. Represent that the buyer or prospective buyer has been specially selected to receive a bargain, discount or other advantage which will reduce the cost of the improvements or goods, when such is not the case;

3.1.17. Fail to disclose to a buyer or prospective buyer orally prior to the time of sale, and clearly and conspicuously in the written contract required in '3.1.1. of this Rule, that any promissory note or other instrument of indebtedness which must be executed by the buyer or prospective buyer, may be discounted, negotiated, or assigned to a finance company or other third party, and to clearly and conspicuously label any such instrument of indebtedness as a "Consumer Note";

3.1.18. Represent that the goods being offered are current models, when in fact, they are not current models, or are discontinued models;

3.1.19. Misrepresent the quality, capacity, character, nature, manufacturer, or composition of any goods;

3.1.20. Misrepresent or falsely state that the buyer's present equipment, materials, goods or fixtures are dangerous, defective or in need of repair or replacement;

3.1.21. Fail to clearly and conspicuously disclose that an advertised price or offer does not include delivery or installation;

3.1.22. Mislead the prospective buyer into believing that the down payment or some other figure constitutes the full amount the buyer will be obligated to pay, or to omit or exclude any other obligations, fees, charges or costs to the buyer;

3.1.23. Gain entry or access to the prospective buyer's home or property under the false guise of performing a governmental, public utility or other official inspection, or to represent that the seller is acting on behalf of or as an employee of any such entity, when such is not the case;

3.1.24. Represent 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, when such is not the case;

3.1.25. Represent to a prospective buyer that the buyer is being given an introductory, confidential, close out, going out of business, factory or wholesale price discount, that a price discount is being made due to "materials leftover from a nearby job," a test of the local market or a market survey or to otherwise falsely claim that the prices offered are discounted, when such is not the case;

3.1.26. Utilize preprinted or form contract documents in a transaction solicited by the seller which are structured in such a way as to characterize or constitute the buyer as the offeror, thereby requiring the buyer to sign or signify assent to a proposal before it is binding on the seller;

3.1.27. Include in any contract or written document evidencing such a transaction a clause stating or suggesting that the seller's oral representations, promises, assurances, or the like, are not binding;

3.1.28. Include in any home improvement contract or written document evidencing such a transaction a clause requiring liquidated damages or the forfeiture of any deposit or any other amount already paid upon cancellation of the home improvement contract.

3.1.29. Fail to file a certificate in the office of the Clerk of the County Commission in the county in which the principal place of business of the seller is located, setting forth the assumed name in or by which the business is being conducted in conformity with the provisions of Chapter 47, Article 8, Section 2 of the code of West Virginia, 1931, as amended.

3.2. In connection with any home solicitation sale of home improvement(s) and without in any way limiting the application of section 3.1. to such transactions, it is an unfair or deceptive act or practice to fail to provide the buyer a three-day right to cancel in all contracts where such notice is required by W. Va. Code '46A-2-132 through 135, and 16 C.F.R. '429, and as provided herein:

3.2.1. A buyer shall have the right to cancel a home solicitation sale until midnight of the third business day after the day on which he has signed an agreement. Cancellation shall become effective when the buyer gives written notice of his intention to cancel to the seller at the address stated in the agreement. Notice of such cancellation, if given by mail, is given when it is deposited in a mailbox properly addressed and postage prepaid. Such notice of cancellation given by the buyer need not take any particular form and shall be sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home solicitation sale. Notwithstanding any above mentioned provision, a buyer may not cancel a home solicitation sale where he has required and the seller has provided goods or services without delay because of a bona fide emergency and either the seller has in good faith made a substantial beginning of performance of the agreement before the buyer has give notice of cancellation, or in the case of goods, such goods cannot be returned to the seller in substantially as good condition as when they were received by the buyer.

3.2.2. No written agreement shall be effective until after it has been signed by the buyer and he has written the date of such signature in his own handwriting. The statement must appear under the conspicuous caption: "BUYER'S RIGHT TO CANCEL" and read as follows: "If this agreement was solicited at a place other than the seller's business establishment at a fixed location and you decide you do not want these goods or services, you may cancel this agreement by mailing a notice to the seller. The notice must be mailed to: (Name and mailing address of seller). Until the seller has fully complied with this section, the buyer may cancel the home solicitation sale. Any written agreement which contains the form and content of notice of cancellation required by the federal trade commission and which provides information substantially similar to that required by this Rule shall be deemed to comply fully with this Rule.

3.2.3. Within ten (10) days after a home solicitation sale has been cancelled, the seller shall tender to the buyer any payment made by the buyer to him and any note or other evidence of indebtedness taken in the transaction. A provision permitting the seller to keep all or part of any payment, note or other evidence of indebtedness is in violation of this section and unenforceable. If any down payment included goods traded in, the seller shall return the goods in substantially as good a condition as when he received them. If a seller has failed to tender goods as required by this section, the buyer may elect to recover an amount equal to the trade-in allowance on such goods as stated in the agreement. Until a seller has complied with all the obligations imposed by this section, a buyer may keep any goods delivered to him by the seller and he is hereby given a lien on such goods or the purpose of making any recovery to which he is entitled by this section.

3.2.4. Within a reasonable time after a home solicitation sale has been cancelled, the seller may demand and receive any goods delivered by him to the buyer as a result of the home solicitation sale. The buyer shall not be obligated to tender such goods to the seller at any place other than the buyer's residence. If the seller fails to demand possession of goods within such reasonable time, such goods shall become the buyer's property without any obligation to pay for them. For the purposes of this section, twenty days shall be presumed to be a reasonable time. The buyer shall take reasonable care of such goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk. Where the seller has performed any service pursuant to a home solicitation sale prior to its cancellation or prior to giving the statement required in section 3.2.2. of this Rule, he shall not be entitled to any compensation for such performance.

3.3. Provided, however, That, if no written agreement is in fact executed by the parties, the requirements of section '3.1.1. through 3.1.6. of this Rule, and any other provision that implicitly requires a written contract, shall be inapplicable to home improvement transactions with a contract price under two hundred-fifty dollars ($250.00) or which are necessitated by a bona fide emergency.

W. Va. Code R. § 142-5-3