§ 917 — New home construction fraud; class B felony; class D felony; class G felony; class A misdemeanor

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

(1) 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 § 7003(13) of Title 25.

(2) A “home buyer” means a person who intends to enter into a new home construction contract for oneself or on behalf of any person.

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

(4) “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.

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

(3) Receives payment or payments 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, § 916 of this title, or § 3505 of Title 6 within 10 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 of Title 6 relating to new home construction or home improvements (as defined in paragraph (a)(4) of this section).

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

(1) The loss to the home buyer is $1,500 or more 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 D felony; or

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

Legislative History

71 Del. Laws, c. 46, § 1 ; 70 Del. Laws, c. 186, § 1 ; 77 Del. Laws, c. 133, § 12 ; 78 Del. Laws, c. 353, §§ 6- 8 ; 83 Del. Laws, c. 341, § 1 ; 84 Del. Laws, c. 42, § 1 ; 85 Del. Laws, c. 206, § 1