Wisconsin Administrative Code
Department of Agriculture, Trade and Consumer Protection
ATCP 90-139 - Trade and Consumer Protection
Chapter ATCP 110 - Home Improvement Practices
Section ATCP 110.09 - Basement waterproofing practices
Universal Citation: WI Admin Code ยง ATCP 110.09
Current through August 26, 2024
(1) DECLARATION OF POLICY. Basement water problems and particularly those arising from poor drainage or high water tables are often difficult to correct without a thorough analysis of causative factors and the performance of extensive and costly waterproofing services. The effectiveness of such services, unlike many other services, cannot readily be determined until heavy rains or other conditions responsible for basement water problems occur. In the performance of basement waterproofing services certain methods or processes have been used at substantial cost to the consumer which are ineffective, inadequate, or unsuitable for the correction of basement water problems. Guarantees, if given, may often be vague, ambiguous, or unenforceable against the seller, or otherwise made without reasonable expectancy of performance on the part of the seller to the detriment of the buyer. These and other abuses in the sale of basement waterproofing services are contrary to the public interest and are unfair trade practices and unfair methods of competition prohibited under s. 100.20, Stats.
(2) DEFINITIONS.
(a) "Advertising" means any oral, written,
printed, or graphic statement or representation made in connection with the
solicitation or sale of basement waterproofing services.
(b) "Basement waterproofing" means the use or
application of materials or processes for the prevention or control of water
leakage or flow through the basement walls or flooring into the interior
portion of a basement.
(c)
"Engineer's analysis" means a written report from a professional engineer
registered in the state of Wisconsin containing an analysis of soil conditions,
water tables or pressure, and other factors or conditions affecting the
existence and correction of basement water problems, and an opinion as to the
probability that the process and the particular substances or materials which
are to be used in the performance of basement waterproofing services will or
will not cure the basement water problem or have a significant waterproofing
effect.
(d) "Pressure pumping"
means a basement waterproofing process by which a substance is injected into
the ground adjacent to the basement walls or beneath the basement foundation or
floor by pipes or other conduits for the purpose of protecting or sealing the
basement walls, foundation, or floors against water penetration.
(e) "Seller's analysis" is a written
statement by the seller of the causes and conditions responsible for the
buyer's basement water problem and the specific processes and materials to be
used in correcting the problem.
(f)
"Guarantee" means any promise, made by or on behalf of the seller in connection
with the sale of basement waterproofing services, which provides that the
seller's services, materials, or workmanship are defect free or will meet a
specified level of performance over a specified period of time, or which
provides that the seller will correct, repair, service, replace, make refunds
for, or otherwise remedy any systems, problems, defects, or malfunctions that
relate to or arise out of basement waterproofing services. The term includes
service contracts or agreements made by or on behalf of the seller in
connection with a basement waterproofing contract under which the seller
provides or agrees to perform, over a fixed or extended period of time,
basement waterproofing inspection, maintenance, or repair services, whether or
not a separate or additional charge is made for such services.
(3) PROHIBITED PRACTICES. No seller of basement waterproofing services, products, or materials shall engage in the following unfair trade practices or unfair methods of competition:
(a) Make or offer to make any guarantee with
respect to basement waterproofing services unless the guarantee meets the
requirements of sub. (4), and is furnished to the buyer in writing with a
seller's analysis prior to final execution of any contract.
(b) Make any guarantee the seller knows or
reasonably ought to know cannot be performed or which exceeds the period of
time the seller or other persons obligated under the guarantee may be able to
honor or perform under the guarantee.
(c) Submit a seller's analysis to the buyer
which the seller knows or reasonably ought to know is founded on incorrect
facts or conclusions.
(d) Enter
into a basement waterproofing contract which provides, in whole or in part, for
the performance of services which the seller knows or reasonably ought to know
are unnecessary or will not materially serve to correct the buyer's basement
water problem, unless such unnecessary or noncorrective services are separately
and distinctly identified and enumerated in the seller's analysis, or an
amendment thereto, provided to the buyer prior to execution of a basement
waterproofing contract.
(e)
Advertise basement waterproofing services in a manner which explicitly states
or otherwise suggests or implies that such services will be guaranteed, unless
they are in fact guaranteed and a copy of the guarantee is furnished to the
buyer in connection with any basement waterproofing contract.
(f) Advertise that basement waterproofing
services of the seller are or will be effective unless the seller is
experienced in and uses basement waterproofing methods generally recognized as
being effective for the prevention or control of basement water problems in the
basement waterproofing industry.
(g) Sell basement waterproofing services
using the pressure pumping method unless the need or effectiveness of such
method is established in a seller's analysis verified by an engineer's analysis
furnished to the buyer prior to the sale, and the work is guaranteed as
provided under sub. (4).
(h)
Advertise basement waterproofing services using the pressure pumping process
without disclosing in the advertisement that an engineer's analysis
recommending this process is required as a condition to the use thereof, and
must be furnished to the buyer before a contract is signed.
(i) Enter into any contract for basement
waterproofing services which does not contain all agreements, promises, or
representations made with respect to such services, and which is not in writing
and signed by the buyer and seller.
(j) Fail to provide, in all instances where
the seller's basement waterproofing services are not guaranteed, the following
disclaimer, which shall be set forth on the face of the contract, separate and
apart from all other contract provisions, and in bold face type: "THE BASEMENT
WATERPROOFING SERVICES PROVIDED BY THIS CONTRACT ARE NOT GUARANTEED."
(4) GUARANTEES.
(a) All guarantees shall be furnished to the
buyer in writing prior to the final execution of any contract and include the
name and address of the seller or person responsible for performance under the
guarantee. Guarantees shall be considered part of the basement waterproofing
contract and any breach in the terms or conditions thereof shall entitle the
buyer to a full refund of money paid under the contract, less the value of
benefits actually derived from the performed services. The burden of
establishing any benefit to the buyer shall be on the seller.
(b) All guarantees shall be set forth in
clear and explicit terms and shall fully guarantee that the work or services to
be performed will effectively prevent or control the basement water problem
they were designed or intended to prevent or control for the period of time
specified in the guarantee. Basement dampness may be excluded from the
guarantee if agreed to by the buyer in writing and the guarantee or contract
contains the following statement in bold face type: "THE GUARANTEE PROVIDED
HEREIN DOES NOT COVER DAMPNESS ON THE BASEMENT WALLS-IT DOES COVER ANY WATER
LEAKAGE OR FLOW."
(c) All
guarantees shall contain a provision that any remedial work or services to be
performed under the guarantee shall begin within 45 days and be completed
within 6 months after notice by the buyer to the seller of any failure of the
waterproofing services under the contract. Notice of any claim by the buyer
under the guarantee shall be deemed actual notice if mailed by certified mail
to the seller's address as set forth in the guarantee.
(5) SELLER'S ANALYSIS. Sellers of basement waterproofing services shall prepare and furnish to the buyer a signed copy of the seller's analysis prior to the final execution of any basement waterproofing contract.
Disclaimer: These regulations may not be the most recent version. Wisconsin may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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