HB1142 96TH GENERAL ASSEMBLY

LRB096 08678 KTG 18803 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB1142

Introduced 2/11/2009, by Rep. Michael W. Tryon

SYNOPSIS AS INTRODUCED:

New Act

Creates the Manufactured Housing Buyer Protection Act. Provides that, if, after a reasonable number of attempts, the seller of a manufactured housing unit is unable to conform the manufactured housing unit to any of its applicable express warranties, then the manufacturer must either provide the consumer with a new manufactured housing unit of like model line, if available, or otherwise a comparable manufactured housing unit as a replacement, or accept the return of the manufactured housing unit from the consumer and refund to the consumer the full purchase price or lease cost of the new manufactured housing unit, including all collateral charges, less a reasonable allowance for consumer use of the manufactured housing unit, but only when the consumer has first resorted to an informal settlement procedure applicable to such disputes. Provides that persons electing to proceed and settle under the Act are barred from a separate cause of action under the Uniform Commercial Code. Provides guidelines for commencement of such actions. Requires the seller who sells a new manufactured housing unit to a consumer, upon delivery of that manufactured housing unit to the consumer, to provide the consumer with a written statement clearly and conspicuously setting forth in full detail the consumer's rights under specified provisions of the Act. Makes the Act applicable to manufactured housing sold after the effective date of this Act.

A BILL FOR

AN ACT concerning business.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Manufactured Housing Buyer Protection Act.

Section 5. Definitions. As used in this Act:

"Consumer" means an individual who purchases or leases for a period of at least one year a new manufactured housing unit from the seller for primarily personal, household, or family purposes.

"Express warranty" has the meaning given to that term in the Uniform Commercial Code.

"Manufactured housing" or "manufactured housing unit" means a building assembly or system of building sub-assemblies, designed for habitation as a dwelling for one or more persons, including the necessary electrical, plumbing, heating, ventilating and other service systems, that is of closed or open construction and that is made or assembled by a manufacturer, on or off the building site, for installation, or assembly and installation, on the building site, with a permanent foundation.

"Nonconformity" refers to a manufactured housing unit's failure to conform to all express warranties applicable to that manufactured housing unit, which failure substantially impairs the use, market value, or safety of that manufactured housing unit.

"Seller" means the manufacturer of manufactured housing, that manufacturer's agent or distributor, or that manufacturer's authorized dealer.

"Statutory warranty period" means the period of one year after the date of the delivery of a manufactured housing unit to the consumer who purchased or leased it.

"Lease cost" includes deposits, fees, taxes, down payments, periodic payments, and any other amount paid to a seller by a consumer in connection with the lease of a manufactured housing unit.

Section 10. Failure of manufactured housing to conform; remedies; presumptions.

(a) If, after a reasonable number of attempts, the seller is unable to conform the manufactured housing unit to any of its applicable express warranties, then the manufacturer must either provide the consumer with a new manufactured housing unit of like model line, if available, or otherwise a comparable manufactured housing unit as a replacement, or accept the return of the manufactured housing unit from the consumer and refund to the consumer the full purchase price or lease cost of the new manufactured housing unit, including all collateral charges, less a reasonable allowance for consumer use of the manufactured housing unit. For purposes of this Section, "collateral charges" does not include taxes paid by the purchaser on the initial purchase of the new manufactured housing unit. The retailer who initially sold the manufactured housing unit may file a claim for credit for taxes paid pursuant to the terms of Sections 6, 6a, 6b, and 6c of the Retailers' Occupation Tax Act. Should the manufactured housing unit be converted, modified, or altered in a way other than the manufacturer's original design, the party that performed the conversion or modification shall be liable under the provisions of this Act, provided the part or parts causing the manufactured housing unit not to perform according to its warranty were altered or modified.

(b) A presumption that a reasonable number of attempts have been undertaken to conform a new manufactured housing unit to its express warranties shall arise where, within the statutory warranty period,

(1) the same nonconformity has been subject to repair by the seller, its agents or authorized dealers during the statutory warranty period, 4 or more times, and such nonconformity continues to exist; or

(2) the manufactured housing unit has been out of service by reason of repair of nonconformities for a total of 30 or more business days during the statutory warranty period.

(c) A reasonable allowance for consumer use of a manufactured housing unit is that amount directly attributable to the wear and tear incurred by the new manufactured housing unit as a result of its having been used prior to the first report of a nonconformity to the seller and during any subsequent period in which it is not out of service by reason of repair.

(d) The fact that a new manufactured housing unit's failure to conform to an express warranty is the result of abuse, neglect, or unauthorized modifications or alterations is an affirmative defense to claims brought under this Act.

(e) The statutory warranty period of a new manufactured housing unit shall be suspended for any period of time during which repair services are not available to the consumer because of a war, invasion or strike, or a fire, flood, or other natural disaster.

(f) Refunds made pursuant to this Act shall be made to the consumer, and lien holder if any exists, as their respective interests appear.

(g) For the purposes of this Act, a manufacturer sells a new manufactured housing unit to a consumer when he provides that consumer with a replacement manufactured housing unit pursuant to subsection (a).

(h) In no event shall the presumption herein provided apply against a manufacturer, his agent, distributor or dealer unless the manufacturer has received prior direct written notification from or on behalf of the consumer, and has an opportunity to correct the alleged defect.

Section 15. Informal settlement procedure.

(a) The provisions of subsection (a) of Section 10 shall not apply, unless the consumer has first resorted to an informal settlement procedure applicable to disputes to which that subsection would apply where:

(1) the manufacturer of the new manufactured housing unit has established such a procedure;

(2) the procedure conforms:

(A) substantially with the provisions of Title 16, Code of Federal Regulation, Part 703, as from time to time amended; and

(B) to the requirements of subsection (c); and

(3) The consumer has received from the seller adequate written notice of the existence of the procedure. Adequate written notice includes but is not limited to the incorporation of the informal dispute settlement procedure into the terms of the written warranty to which the manufactured housing unit does not conform.

(b) If the consumer is dissatisfied with the decision reached in an informal dispute settlement procedure or the results of such a decision, he may bring a civil action to enforce his rights under subsection (a) of Section 3. The decision reached in the informal dispute settlement procedure is admissible in such a civil action. The period of limitations for a civil action to enforce a consumer's rights or remedies under subsection (a) of Section 3 shall be extended for a period equal to the number of days the subject matter of the civil action was pending in the informal dispute settlement procedure.

(c) A disclosure of the decision in an informal dispute settlement procedure shall include notice to the consumer of the provisions of subsection (b).

Section 20. Election to proceed and settle. Persons electing to proceed and settle under this Act are barred from a separate cause of action under the Uniform Commercial Code.

Section 25. Commencement of action. Any action brought under this Act must be commenced within 18 months following the date of original delivery of the manufactured housing unit to the consumer.

Section 30. Written statement. The seller who sells a new manufactured housing unit to a consumer, must, upon delivery of that manufactured housing unit to the consumer, provide the consumer with a written statement clearly and conspicuously setting forth in full detail the consumer's rights under subsection (a) of Section 10, and the presumptions created by subsection (b) of that Section.

Section 35. Application of Act. This Act shall apply to manufactured housing sold after the effective date of this Act.