The Oregon Home Solicitation Sales Act (OHSSA), ORS §§ 83.710-83.750, provides customers with a three-day right to cancel while imposing stringent disclosure requirements on sellers in connection with home solicitation sales, including certain in-person sales commonly made by residential contractors. If these disclosure requirements are not strictly adhered to, the customer may be indefinitely entitled to avoid the transaction in its entirety, leaving the contractor in the unenviable position of providing goods or services without any compensation in return. Given these drastic consequences, Oregon contractors should be aware of the OHSSA’s requirements and ensure their sales documents comply with its provisions.
What does the OHSSA do?
The OHSSA is a consumer protection statute that grants a customer in a home solicitation sale the right to cancel the transaction within three business days of either signing the sales agreement or paying by cash or check. To cancel the transaction, the customer need only provide written notice of cancellation to the seller (subsequently referred to as the “contractor” for purposes of this discussion). The cancellation notice does not need to take a particular form, so long as it is in writing and expresses the customer’s intention not to be bound by the transaction.
When does the OHSSA apply?
The OHSSA applies to transactions that the statute defines as a “home solicitation sale.”[i] A “home solicitation sale” is defined as (1) a sale, lease, or rental of goods or services primarily for personal, family, or household use that (2) the contractor personally solicits, even when in response to a customer’s invitation, and where (3) the customer’s written agreement or offer to purchase is made at a place other than the contractor’s place of business.
Certain sales that would otherwise fall within this definition are expressly excluded from the scope of the OHSSA. Some of the exclusions that are relevant to Oregon contractors include: (1) contracts in writing for the construction of a new house or business property; (2) sales for cash or check in an amount less than $25; and (3) transactions where the customer initiated contact and specifically requested that the contractor come to the customer’s residence for the purpose of repairing or performing maintenance on the customer’s personal property.
Additionally, a customer’s right to cancel a home solicitation sale does not apply in the limited circumstance where (1) the customer initiates contact with the contractor, (2) the customer, in a separate signed writing not furnished by the contractor, requests that the contractor provide goods or services without delay because of an emergency, describes the emergency, and expressly acknowledges and waives the right to cancel the sale, (3) the contractor, in good faith, makes a substantial beginning of performance before the customer gives notice of cancellation, and (4) in the case of goods, the goods cannot be returned in substantially as good condition as when received by the customer. This exception to the rule is rare, and most home solicitation sales will be subject to the customer’s right of cancellation.
How can I comply with the OHSSA?
Oregon contractors can comply with the OHSSA by confirming their home solicitation sales are documented by a written agreement signed by the customer. The agreement must be dated with the date on which the customer actually signs the agreement, contain the contractor’s name and business address, be in the same language as that used in the sales presentation, and contain, in at least 10-point boldfaced type, the following statutory disclaimer next to the customer’s signature line:
You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of buyer’s right to cancel for an explanation of the right to cancel.
The contractor must then provide a fully completed copy of the agreement to the customer at the time the agreement is signed. Additionally, the contractor must provide a second notice of the customer’s right to cancel so that the customer can retain a full copy of the completed agreement in the event of cancellation. This second notice must be in conspicuous type, 10-point or larger, and contain the required statutory language.[ii] Lastly, the contractor must also orally inform the customer of the right to cancel the transaction.
What happens if I don’t comply with the OHSSA?
A contractor’s failure to comply with the OHSSA’s disclosure requirements effectively extends the customer’s three-day deadline to cancel the transaction until such time as the contractor has complied with the OHSSA. A contractor’s non-compliance also enables the customer to cancel the transaction by notifying the contractor of its intent to cancel in any manner and by any means. This means that the customer’s right to cancel is indefinite, and the customer can cancel the transaction weeks, months, or even years after it was entered into.
The customer canceled the contract. What happens next?
Once a customer cancels a transaction, the contractor has ten days to return any payments the customer made as part of the transaction, as well as any goods the customer traded in. Until the contractor has returned the customer’s payments and traded-in goods, the customer may retain, and has a lien against, any goods the contractor delivered to the customer.
After returning the customer’s payments and traded-in goods, but no more than twenty days after the customer’s cancellation of the transaction, the contractor can demand possession of any goods that it previously delivered to the customer as part of the sale. The customer, however, is not required to tender possession of the contractor’s goods at any place other than the customer’s residence. If the contractor fails to timely demand possession of the goods, they become the property of the customer without obligation to pay for them. In any event, the contractor is not entitled to any compensation for services it rendered prior to the cancellation of the sale.
Although a contractor cannot avoid a customer’s three-day right to cancel a home solicitation sale, it can make sure that those cancellation rights are not indefinitely extended by the contractor’s non-compliance with the OHSSA. Oregon contractors should have legal counsel review their sales policies, contracts, and statutory disclosures to confirm OHSSA compliance and protect themselves from avoidable cancellations of sales down the line.
[i] The OHSSA also applies to “telephone solicitation sales,” as defined in ORS 83.710(1)(b), but the discussion in this article is limited to home solicitation sales.
[ii] The OHSSA requires that this language be included in the notice.