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Toney v. Fauhiva10/28/2005
nt until the applicant signs a statement that the applicant has read and understands the disclosure form.
(d) A county building inspector or other building official shall report to the regulated industries complaints office the name and address of any person, who, in the opinion of the building inspector or official, has violated this chapter by accepting or contracting to accomplish work which would classify the person as a contractor under this chapter.
§ 444-25.5 Disclosure; contracts. (a) Prior to entering into a contract with a homeowner involving home construction or improvements and prior to the application for a building permit, licensed contractors shall:
(1) Explain verbally in detail to the homeowner all lien rights of all parties performing under the contract including the homeowner, the contractor, any subcontractor or any materialman supplying commodities or labor on the project;
(2) Explain verbally in detail the homeowner's option to demand bonding on the project, how the bond would protect the homeowner and the approximate expense of the bond; and
(3) Disclose all information pertaining to the contract and its performance and any other information that the board may require by rule.
(b) All licensed contractors performing home construction or improvements shall provide a written contract to the homeowner. The written contract shall:
(1) Contain the information provided in subsection (a) and any other relevant information that the board may require by rule;
(2) Be signed by the contractor and the homeowner; and
(3) Be executed prior to the performance of any home construction or improvement.
(c) For the purpose of this section, "homeowner" means the owner or lessee of residential real property, including owners or lessees of condominium or cooperative units.
(d) Any violation of this section shall be deemed an unfair or deceptive practice and shall be subject to provisions of chapter 480, as well as the provisions of this chapter.
DISCUSSION
The Toneys challenge the circuit court's decision that HRS Chapter 444-25.5 is inapplicable in this case. In support of their contention that HRS § 444-25.5 is applicable, the Toneys rely on this court's prior holdings in Hiraga v. Baldonado, 96 Hawaii 365, 31 P.3d 222 (App. 2001), and Jones v. Phillipson, 92 Hawaii 117, 987 P.2d 1015 (App. 1999).
In Hiraga, the first issue was whether a licensed general contractor who failed to comply with the disclosure requirements of HRS § 444-25.5 was precluded from recovering in quantum meruit for work performed according to contract. See Hiraga, 96 Hawaii at 372, 31 P.3d at 229. The answer was no.
In Hiraga, the second issue was whether a licensed contractor who failed to comply with the disclosure requirements of HRS § 444-25.5 was authorized to impose an HRS § 507-42 lien (for supplying labor and/or material) to the homeowner's property. For the following reason, the answer was no. HRS § 444-25.5(d) says that any violation of it "shall be deemed an unfair or deceptive practice and shall be subject to provisions of chapter 480[.]" HRS § 480-12 says that contracts in violation of HRS Chapter 480 are void. Thus, when contractor Hiraga violated HRS § 444-25.5, he also violated HRS § 480-12 and thereby voided the contract. Consequently, Hiraga was not authorized to impose an HRS § 507-42 lien on Baldonado's property.
In Jones, the issue before this court was whether an owner-builder's violation of the conditions for exemption contained in HRS § 444-2(7) prevented the owner-builder from bringing suit again
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