Home improvement contractors hoping to avoid liability under the Consumer Fraud Act (CFA) have one fewer argument in their arsenal; the Appellate Division has held that homeowners who act as general contractors of their own home improvement projects may still resort to the protections of the CFA.
In Murnane v. Finch Landscaping, LLC, ___ N.J. Super. ___ (App. Div. 2011), the Appellate Division considered the viability of a CFA claim brought by a homeowner who had contracted with several contractors to design and construct a patio at his home. During construction of the patio, several changes were made to the written contract with one of the contractors, though none of these changes were put into writing. When the job was complete, that contractor invoiced the homeowner for additional amounts not reflected in the original contract. The homeowner refused payment and brought an action in the Special Civil Part alleging breach of contract and violations of the CFA.

Later realizing that if his damages were trebled under the CFA, the damages would be in excess of the jurisdictional limit of the Special Civil Part, the homeowner moved to have the matter transferred to the Law Division. The defendant home improvement contractor opposed the motion, arguing that the homeowner, having characterized himself as “the general contractor of his patio project,” cannot invoke the protections of the CFA. The motion judge denied the homeowner’s motion to transfer and granted the defendant contractor’s cross-motion to dismiss the CFA claim.

On appeal, the defendant contractor relied upon Messeka Sheet Metal Co, v. Hodder, 368 N.J. Super. 116 (App. Div. 2004) for the proposition that a homeowner who acts as a general contractor may not proceed under the CFA. The appellate panel easily distinguished Messeka, where the plaintiff homeowner was precluded from proceeding under the CFA not because he acted as a general contractor, but because he had no direct contractual relationship with the defendant contractor. The existence of a contract between the homeowner and defendant home improvement contractor was not at issue here. As such, there was no basis to exclude an individual from the protections of the CFA who is clearly an “owner, tenant or lessee, of a residential or noncommercial property,” regardless of his service as a general contractor on his own home improvement project.

Homeowners must be constantly vigilant when dealing with home improvement contractors and should not hesitate to seek competent counsel when their contractors employ unlawful practices.