Code of Massachusetts Regulations › 201 CMR - OFFICE OF CONSUMER AFFAIRS AND BUSINESS REGULATION › Title 201 CMR 14.00 - HOME IMPROVEMENT CONTRACTOR ARBITRATION AND GUARANTY FUND › Section 14.02 - Definitions

Current through Register 1525, July 5, 2024
Unless otherwise stated, terms used in
				201 CMR 14.00 are as defined
				or used in M.G.L c. 142A.
Actual Loss
. Amounts payable for the
				cost of repair, replacement, completion or performance under the terms of a
				written residential home improvement contract with respect to which a Guaranty
				Fund claim is made.
Applicant
. The owner occupant,
				authorized tenant or registrant covered by provisions of M.G.L. c. 142A who
				files a request, on an approved form, for arbitration before an OCABR approved
				arbitrator claiming a failure of performance under a residential home
				improvement contract. A request for arbitration may be filed only once with
				respect to a registrant's failure to perform a contract.
Arbitrator.
Any person who has been
				certified by OCABR to perform home improvement contractor, or subcontractor
				arbitration services. These appointed individuals issue binding decisions
				pursuant to M.G.L. c. 142A and
				201 CMR 14.00.
Business Days
. Monday through Friday,
				except for state or federal holidays.
Claimant
. An owner and resident of a
				residential building, containing at least one but not more than four dwelling
				units, who has entered into a residential home improvement contract with a
				contractor, or subcontractor to carry out construction work on said building,
				and who is making a claim against said contractor, or subcontractor for failure
				of performance under said contract pursuant to M.G.L. c. 142A. A claimant may
				only recover once up to and no more than $10,000 from the Guaranty Fund to
				compensate for actual loss.
Clear and Conspicuous
. Shall be
				defined in a manner which is consistent with the definition provided by the
				applicable sections of the Attorney General's Retail Advertising Regulations,
				940 CMR 6.01:
Definitions
and 6.01:
Clear and
				Conspicuous
(f) and the Attorney General's Mortgage Brokers and
				Mortgage Lenders Regulations,
				940 CMR 8.03:
Definitions
.
				201 CMR 14.00 provides that
clear and conspicuous
shall mean that the material
				representation being disclosed is of such size, color, contrast, or audibility
				and is presented so as to be readily noticed and understood by a reasonable
				person to whom it is being disclosed.
Contract
. A written agreement between
				a home improvement contractor and an owner contained in one or more documents
				for the performance of certain residential contracting work, including all
				labor, material, goods and services set forth under said agreement.
Contractor
. Any person who owns or
				operates a contracting business who, through himself or others, undertakes,
				offers to undertake, purports to have the capacity to undertake, or submits a
				bid for residential contracting work. For purposes of
				201 CMR 14.00, the Office of
				Consumer Affairs and Business Regulation shall deem a contractor, or
				subcontractor to be duly registered if the contractor, or subcontractor is
				registered in accordance with M.G.L. c. 142A and
				201 CMR 18.00:
Registration and Enforcement of Home Improvement Contractor
				Program
on the contract signing date with the owner. In the case of
				the deceased contractor, or subcontractor, their administrator, executor, or
				personal representative is substituted where applicable.
Customary and Reasonable Efforts to
				Collect
. Such efforts as are customarily undertaken by or on
				behalf of judgment creditors in Massachusetts for the purpose of collecting a
				judgment, taking into account the amount of the judgment, and the likely cost
				of continued collection efforts. Without limiting the generality of the
				foregoing, the owner's obligation to exhaust all customary and reasonable
				efforts to collect the judgment of a court of competent jurisdiction may be
				satisfied by having a writ of execution for the amount of the judgment served
				in hand by a constable or sheriff upon the judgment debtor, and demand made,
				unless such service and demand cannot be made because the judgment debtor
				cannot be found or the judgment debtor has filed for bankruptcy. An arbitration
				award must be converted to a court judgment in order to obtain a writ of
				execution for service by a constable or sheriff upon the contractor, or
				subcontractor.
This standard may be satisfied by the following:
(a)
District or Superior Court Supplementary
				Process; Writ of Execution
. Submitting evidence to the fund
				administrator that a writ of execution for a monetary court judgment was served
				upon the contractor, or subcontractor by a constable or sheriff at the
				contractor's, or subcontractor's last known business address. In the
				alternative, evidence of attendance of a supplementary process hearing is
				sufficient.
(b)
Small Claims Court Notice to Show Cause; Writ
				of Execution
. If a claim is properly made before a small claims
				court, submitting evidence to the fund administrator that a writ of execution
				for a monetary court judgment was served upon the contractor, or subcontractor
				by a constable or sheriff at the contractor's, or subcontractor's last known
				business address. In the alternative submitting evidence to the fund
				administrator that a notice to show cause has been served upon the contractor,
				or subcontractor by a constable or sheriff at the contractor's, or
				subcontractor's last known business address, that the contractor, or
				subcontractor has failed to pay the claim and has failed to defend the
				claim.
(c)
Bankruptcy
. Submitting evidence to
				the fund administrator from the United States Bankruptcy Court confirming that
				the contractor, or subcontractor, or their estate, has filed for
				bankruptcy.
(d)
Contractor or Subcontractor Fled
				Jurisdiction
. Submitting evidence to the fund administrator that a
				service of court or arbitration order was attempted at all known addresses of
				the contractor, or subcontractor by a constable, sheriff, or agent of the
				state.
Designated Agent
. A party any
				individual designated, in writing, to represent him or her. A designated party
				need not be an attorney.
Fund Administrator
. The administrator
				of the Residential Contractor's Guaranty Fund, appointed by the director of the
				Office of Consumer Affairs and Business Regulation.
Guaranty Fund
(including the term
Fund
). The Residential Contractor's Guaranty Fund
				established pursuant to M.G.L. c. 142A.
OCABR.
The Office of Consumer Affairs
				and Business Regulation.
Owner
(including the term
Homeowner
). Any owner of a pre-existing owner-occupied
				building which is an existing building at the time of a contract, containing at
				least one but not more than four dwelling units, or a tenant authorized by the
				homeowner thereof, who orders, contracts for, or purchases the services of a
				contractor or subcontractor. An owner occupying a condominium unit in a
				building containing no more than four dwelling units qualifies as an owner
				under
				201 CMR
				18.01(2):
Owner
; provided, however, that the owner owns a total of not
				more than four condominium units. A condominium association, a corporation,
				partnership, (incorporated or unincorporated), trust, charitable organization,
				or any other business entity does not qualify as an owner.
Owner-occupied.
The residential
				building of at least one but not more than four dwelling units and occupied by
				the owner as a primary residence.
Person
. Any individual, partnership,
				corporation, society, trust, association, or any other legal entity.
Registrant.
Any person duly registered
				as a home improvement contractor or subcontractor under the provisions of
				M.G.L. c. 142A and
				201 CMR 18.00:
Registration and Enforcement of Home Improvement Contractor
				Program
on the date of the contract with the owner.
Registration Number
. The number
				assigned to the contractor or subcontractor after he or she has been approved
				for registration by the OCABR.
Residential Contracting
. The
				reconstruction, alteration, renovation, repair, modernization, conversion,
				improvement, removal, demolition, or the construction of an addition to any
				preexisting owner occupied building containing at least one but not more than
				four dwelling units, which building or portion thereof is used or designed to
				be used as a residence or dwelling unit, or to existing structures which are
				adjacent to such residence or building including, but not necessarily limited
				to: garages, sheds, cabanas, pool houses, gazebos.
Request for Arbitration Form
. The form
				provided by the director of OCABR to applicants filing for arbitration.
Subcontract.
A contract, written or
				verbal, in any amount, between a home improvement contractor and a
				subcontractor or between two subcontractors for the performance of any part of
				the home improvement contractor's or subcontractor's contract.
Subcontractor
. Any person other than a
				supplier of material or labor, who enters into a contract, written or verbal,
				with a contractor or subcontractor for the performance of any part of the
				contractor's contract, or who enters into a contract with any other
				subcontractor for the performance of any part of the subcontractor's contract,
				and who does not perform work other than as a subcontractor.
Unworkmanlike Manner
. Materials that
				are used and methods which are employed that are of substandard, unreasonable,
				imprudent, or inadequate quality or are inconsistent with good construction
				practices; that materials used and methods employed are wholly or partially
				inaccurate or unacceptable in final appearance or function; or, that materials
				used and methods employed are unsafe or may result in an unsafe or
				non-functional final product.