Section 110.07. Contract cancellation; return of payments.

 

(1)   Conditions warranting exercise of buyer's remedies. If, under a home improvement contract, a buyer pays a seller for any home improvement materials or services before the seller provides those materials or services to the buyer, the buyer may proceed under sub. (2) if any of the following occurs:

(a) The seller fails to provide the materials or services by a deadline specified in the home improvement contract.

(b) The seller fails to give buyer notice of an impending delay as required under s. ATCP 110.02 (7) (c) , or fails to obtain the buyer's agreement to a new performance deadline.

(c) The buyer believes that the seller has failed to provide the materials or services in a timely manner, and the home improvement contract specifies no deadline for the seller to provide the materials or services.

(2)   Buyer's remedies. If the conditions under sub. (1) are met, the buyer may do all of the following:

(a) Cancel the contract.

(b) Demand return of all payments which the seller has not yet expended on the home improvement.

(c) If the seller has used any of the buyer's payments to purchase materials for the home improvement, demand delivery to the home improvement site of those materials which have not yet been used for the home improvement or delivered to the site.

(d) Demand a written accounting for all payments that the buyer made to the seller. The written accounting shall detail how all payments were used by the seller.

(3)   Buyer's exercise of remedies; procedure. In order to exercise any remedy under sub. (2) , the buyer shall deliver written notice to the seller, or to the seller's officer, director, or agent. Notice shall be delivered in person, by certified mail to the seller's last known address, or by regular mail with evidence of mailing to the seller's last known address. If notice is mailed to the seller, the date on which the post office receives the notice for delivery is considered the date of service for purposes of sub. (4) . Compliance with this subsection is not a prerequisite to the buyer's exercise of other remedies other than those specified under sub. (2) .

(4)   Compliance by seller.

(a) If the buyer demands the return of payments to which the buyer is entitled under sub. (2) (b) , the seller shall return those payments to the buyer within 15 calendar days after the buyer's demand is served on the seller under sub. (3) .

(b) If the buyer demands delivery of materials to which the buyer is entitled under sub. (2) (c) , the seller shall deliver those materials to the home improvement site within 15 calendar days after the buyer's demand is served on the seller under sub. (3) , or within 5 calendar days after the seller receives the materials from the seller's supplier, whichever occurs later.

(c) If the buyer demands an accounting to which the buyer is entitled under sub. (2) (d) , the seller shall provide the buyer with the written accounting within 30 calendar days after the buyer's demand is served on the seller under sub. (3) .

(5)   Remedies not exclusive. A buyer's remedies under this section are in addition to any other legal remedies available to the buyer. They are not a prerequisite to the exercise of any other remedies, nor do they limit any other remedies.

History: Cr. Register, September, 1993, No. 453 , eff. 10-1-93.

Note

Section ATCP 110.02 (7) (c) specified that it was a prohibited unfair trade practice for a seller to fail to give the buyer timely notice of any impending delay in contract performance, if performance will be delayed beyond the deadline specified in the contract. Effective May 1, 2014, s. ATCP 110.02 (7) (c) is repealed and s. ATCP 110.027 (1) is created. Section ATCP 110.027 (1) requires sellers to give buyers timely notice of any impending delay in the home improvement contract performance if performance will be delayed beyond a specified deadline. Microsoft Windows NT 6.1.7601 Service Pack 1