The HVAC system in Elise Theyer’s historic Norfolk, Virginia home needed an update. Elise saw an ad for ductless mini split systems and called Norfolk Air Heating and Cooling to get a bid. Norfolk Air made a sales call. They quoted a ducted system on the first floor and six mini-splits on the second floor. Elise signed their agreement on November 21, 2017.
So far, so good. But as I’ve said many times: “When the job goes bad, you better have a good contract.” In Elise’s case, Norfolk Air didn’t. Their quote omitted the notice of a buyer’s right to cancel, as required by Virginia’s Home Solicitation Sales Act (HSSA).
Problems started when Elise wasn’t satisfied with her new HVAC system. Norfolk Air did what they could to make repairs. After several attempts, Elise gave up, called another contractor and filed suit against Norfolk Air.
The question for the court: Was Norfolk Air’s sales call on Elise a “home solicitation sale” as defined by Virginia law? If it was, omitting the cancellation notice gave Elise the right to collect damages and attorney fees from Norfolk Air.
A little history: Starting in the 1950s, most states adopted home solicitation sales acts. The intent was to curb abuses common in door-to-door sales. Contracts had to include a notice of the owner’s 3-day right to cancel. Any home solicitation contract that omitted the 3-day notice could not be enforced in court. Worse, consumer protection laws labeled violating the HSSA “consumer fraud” and imposed appropriate penalties.
If you’ve worked in home improvement contracting for a while, you’re sure to see a problem here. Every home repair or improvement job requires a visit to the site. Is every one of those a “home solicitation” sale?
Did omitting the 3-day notice give Elise the right to collect damages and attorney fees?
Many states exempt specific transactions from their home solicitation sales acts. For example, several states have what I call the “big box” exception: If the contract is signed at the place of business of the vendor, even if after an on-site visit, then it isn’t a home solicitation sale.
Virginia’s HSSA exempts sales made at the buyer's residence after "prior negotiations" elsewhere, such as at a trade show or at the vendor’s store. But there weren’t any prior negotiations in this case. Elise simply called Norfolk Air and asked for a quote.
Other states exempt from their HSSA any sales calls made after an invitation from the owner. For example, Mississippi’s HSSA excludes sales made at the owner’s home if the vendor was invited on site. By court decision, Michigan has adopted a similar exception to their HSSA.
Virginia law has no such exception. Every sales call at a residence that results in a sale must include an express notice of the buyer's right to cancel. Va. Code § 59.1-21.3(1).
What the Virginia Court Decided
Fortunately for Norfolk Air, Virginia’s Attorney General has a written opinion on point. According to the AG, it’s not a home solicitation sale if, for example, an owner calls a plumber, gets a quote on the spot and has the plumber do the work. Virginia’s HSSA is not "intended to apply to sales that are initiated by the buyer and that are conducted in the home . . .” In the case of Theuer v. Norfolk Air Heating & Cooling, Inc., the court adopted the AG's logic.
Would the same rule apply if the work were installing a new roof or remodeling a bathroom? In my opinion, that would be a stretch. Black letter law: There’s risk in omitting any contract notice required by law in your state.
So what’s a contractor to do? My answer is simple. Write bullet-proof contracts. That’s easy with Construction Contract Writer, no matter the site, no matter the type of work. The trial version is free.