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

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.