CHAPTER 46

FORMERLY

HOUSE BILL NO. 9

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 11 OF THE DELAWARE CODE RELATING TO THE CRIME OF NEW HOME CONSTRUCTION FRAUD.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):

Section 1. Amend Chapter 5 of Title 11 of the Delaware Code by redesignating § 917 thereof as § 918 and by adding thereto a new § 917 to read as follows:

"§ 917. New Home Construction Fraud; class C felony, class F felony, class G felony, class A misdemeanor.

(a) For the purpose of this section, the following definitions shall apply:

(1) 'New home construction' means the erection, installation or construction of a dwelling on a fixed foundation on land which is owned or purchased by a home buyer.

(2) A 'dwelling' means a building which is usually occupied by a person lodging therein at night but shall not include a mobile home as defined in 25 Del. C. § 7003(2).

(3) A 'home buyer' means a person who intends to enter into a new home construction contract for himself or herself or on behalf of any person.

(4) A 'new home contractor' means any person who offers or provides new home construction services as a general contractor or a sub-contractor and shall, in addition, include but not be limited to, an architect, engineer or real estate broker or agent.

(5) A 'new home construction contract' is any agreement, whether written or oral, between a new home contractor and a home buyer whereby the new home contractor agrees to provide new home construction services in exchange for a payment of money.

(6) Payment of money means tender of money or other consideration of value by a home buyer, or by any lending, institution on behalf of the home buyer to a new home contractor as part of a new home construction contract.

(7) For the purpose of this section, land is 'purchased' by a home buyer when the home buyer acquires it by sale, negotiation, mortgage, pledge, lien, gift or any other transaction creating an interest in the property prior to the formation of the new home construction contract, or if the home buyer is to purchase the land as part of the new home construction contract.

(b) A person is guilty of new home construction fraud who, with the intent specified in § 841 of this Title, enters into a new home construction contract and:

(1) uses or employs any false pretense or false promise as those acts are defined in §§ 843 and 844 of this Title; or

(2) receives payments and intentionally fails to use said payment(s) for the purpose(s) identified in the new home construction contract and/or diverts said payment(s) to a use or uses other than the erection, installation or construction of the dwelling identified therein; or

(3) receives payment(s) and fails to provide that person's own true name, or provides a false name, address or phone number of the business offering said new home construction services.

(c) For new home construction fraud under this section, it shall be prima facie

evidence of the intent specified in § 841 of this title that the new home contractor:

(1) has been previously convicted under this section, 11 Del C §916, or 6 Del. C, § 3505 within ten years of the first payment under the new home construction contract in question; or

(2) is currently subject to any administrative order, judgment or injunction under Chapter 25, Title 6 of the Delaware Code relating to new home construction or home improvements (as defined at 11 Del. C § 917(a)(1)).

(d) New construction fraud is a class A misdemeanor, unless:

(1) the loss to the home buyer is at least $1,000 but less than $50,000, in which case it is a class G felony;

(2) the loss to the home buyer is at least $50,000 but less than $100,000, in which case it is a class F felony; or

(3) the loss to the home buyer is $100,000 or more in which case it is a class C felony.

(e) For the purpose of calculating the amount of the loss to the home buyer, the loss shall be deemed to be the lesser of the total of all payments actually made by the home buyer or the cost to the home buyer to complete the new home construction according to the terms of the original new home construction contract whether or not said new home is actually completed."

Section 2. If any provision of this Act, or the application thereof to any person, thing or circumstance is held invalid, such invalidity shall not affect the provisions or application of this Act that can be given effect without the invalid provisions or application and to this end, the provisions of this Act are declared to be severable.

Approved May 22, 1997