Tag: latent defects

Implied Warranty of Habitability Waiver Doesn’t Bind Second Home Buyer: Deconstructing Fattah v. Bim (IL 1st Dist.)(Part I of II)

Fattah v. Bim, 2015 IL App (1st) 140171 will likely be viewed as a significant victory for homeowners (and a correlative loss for builders) in residential construction disputes.

The plaintiff bought a million-plus dollar home in Chicago’s northern suburbs from the defendant homebuilder “as-is” and subject to an earlier waiver of the implied warranty of habitability signed by a prior purchaser (“Buyer 1”) who sold the house to the plaintiff.

In reversing a bench trial judgment for the defendants, the court answered some important questions concerning the scope and enforceability of disclaimers contained in the sale of real property in Illinois.

Facts:

The sale of the home from defendant to Buyer 1 included a written waiver of the implied warranty of habitability that specifically provided it was binding on the seller, the purchaser, and any successors.

The plaintiff bought the property from Buyer 1 “as is” three years after Buyer 1 bought it.  The contract’s as-is rider provided, among other things, that the seller (Buyer 1) shall not be responsible for “the repair, replacement or modification of any deficiencies, malfunctions or mechanical defects on the Property or to any improvements thereon” and that Buyer 1 makes no representation or warranty to plaintiff concerning the Property’s condition, zoning or suitability for its intended use.

Despite this broad Rider’s language, the contract still required Buyer 1 to disclose known material latent defects.

Four months after plaintiff moved in, the patio collapsed and plaintiff sued the defendant homebuilder.  The trial court found for defendant at trial on the basis that Buyer 1’s implied warranty waiver extended to the plaintiff.  Plaintiff appealed.

Result: Reversed:

Rules/Reasoning:

The appeals court found that the earlier implied warranty of habitability waiver did not bind the plaintiff.  The court’s reasoning:

– the implied warranty of habitability is a creature of public policy that aims to protect innocent purchasers of new houses who discover latent defects in their homes;

– the implied warranty of habitability recognizes that the purchaser, who is generally not knowledgeable in construction practices, has to rely n the integrity and the skill of the builder-vendor, whose business is home building;

– it (the implied warranty of habitability) applies not only to builder-vendors, but also to subcontractors and developer-vendors;

– subsequent home buyers can be protected by the implied warranty of habitability.  This is because a “subsequent purchaser is like the initial purchaser in that neither is knowledgeable in construction practice and must rely on the expertise of the person who built the home to a substantial degree.”

– the warranty of habitability exists independently of a contract between the builder and twice-removed buyer and extends only to “latent defects which manifest themselves within a reasonable time after the purchase of the house.”

– despite the strong public policy reason behind the implied warranty of habitability, a “knowing disclaimer” of the warranty doesn’t violate Illinois public policy;

– one who seeks to benefit from a disclaimer has the weighty burden of establishing that the disclaimer is (1) conspicuous, (2) fully disclosed (along with its consequences) to the buyer, and (3) mutually agreed on by the parties.

(¶¶ 23-25).

With these principles in mind, the court found that Buyer 1’s waiver of the implied warranty of habitability was valid as it appeared prominently in the sales materials and recited the waiver’s impact of the Seller’s rights.

The court then considered whether Buyer 1’s waiver of the implied warranty was binding on plaintiff – a subsequent purchaser who lacked knowledge of the earlier waiver.

Finding that Buyer 1’s waiver did not bind plaintiff, the court noted there was no agreement between plaintiff and defendant and the waiver of the implied warranty of habitability never was brought to plaintiff’s attention.

The court held that an implied warranty of habitability can only be waived where it’s done so “knowingly.”  Here, the plaintiff wasn’t party to Buyer 1’s waiver and testified she wasn’t aware of the waiver when she (plaintiff) bought the house.  Since defendants didn’t refute plaintiff’s testimony, it failed to prove plaintiff knowingly bought the property subject to Buyer 1’s waiver of the implied warranty.  As a result, the waiver didn’t bind the plaintiff.

(¶¶ 28-31)

Take-aways:

1/ The implied warranty of habitability extends to subsequent home purchaser for latent (not overt) defects;

2/ A disclaimer or waiver of an implied warranty offered by a prior buyer won’t bind a subsequent buyer where that later buyer offers evidence that she lacked knowledge of the disclaimer or waiver and that the disclaimer’s importance wasn’t pointed out to her.

Condo Association Sues Developer Based on False Statements In Sales Brochure and For Anemic Repair Reserves

In Henderson Square Condominium Association v. LAB Townhomes, LLC, 2014 IL App (1st) 130764, a condominium association sued the developer and contractor after unit owners discovered wide-ranging property defects in their units. (For Chicago readers: the project is near that nightmarish, multi-cornered Belmont-Lincoln-Ashland intersection on the North side).

The property’s construction was completed in 1996, the unit owners discovered the property defects in 2007-2008 and filed suit in 2011 – nearly 15 years after construction was finished and about 4 years after discovery of the defects.  The extent of the unit damage wasn’t revealed until a consultant hired by the association opened up the unit walls and ceilings. 

The association sued for breach of implied warranty of habitability, fraud, negligence, for violating the Chicago Municipal Code section (Section 13-72-030) governing real estate marketing misrepresentations.  The trial court dismissed all the claims as time-barred.  The association appealed.

Result: Trial court reversed.  Association’s claims reinstated

Rules/reasoning:

The basis for the reversal was the defendants’ possible fraudulent concealment of the association’s causes of action.  Code Section 13-214(a)and (b) provide a four-year limitations and 10-year repose period for construction-related claims, respectively.  The construction repose period can have harsh results: it means that no matter when a plaintiff discovers an injury, if more than 10 years have elapsed since construction was complete, the plaintiff’s claim is barred.

But Code section 13-214(e) provides that the repose period doesn’t apply where a defendant makes fraudulent misrepresentations or fraudulently conceals a plaintiff’s claim.  735 ILCS 5/13-214(e); ¶ 28.  When fraud is involved, the five-year limitations period set forth in Code Section 13-205 (735 ILCS 5/13-205) applies.  To demonstrate fraudulent concealment, a plaintiff must show silence coupled with deceptive conduct or the suppression of material facts.  ¶¶ 95-96. 

The Court found a question of fact as to whether there was active concealment based on (1) defendants’ marketing documents: a sales brochure that made specific statements concerning unit insulation; and (2) the anemic repair reserves earmarked by the developer for repairs.  The Court held that if the defendants didn’t inform the plaintiff that the units lacked insulation – as the plaintiff’s consultant found and noted in its report – and if the reserve levels weren’t large enough to meet anticipated future repairs, this could show fraudulent concealment sufficient to beat the repose period argument.  (¶¶ 98- 102).

The Court also sustained the association’s claims that were premised on Municipal Code.  Sections 13-72-030 and 13-72-100 of the Code provide a real estate buyer both with a private cause of action and damages remedy (including attorneys’ fees) where a seller makes misrepresentations in the course of marketing the sale of real estate; including condominiums.  The First District found that the association stated a cause of action under the Ordinance and rejected the defendants’ argument that the Ordinance claims were duplicative of the association’s fraud claims.  The Court found the Ordinance gave rise to a private right of action and provided an additional remedy to a common law fraud claim.  (¶¶112-113).

Validating the plaintiff’s breach of fiduciary duty claim, the Court looked to the Illinois Condominium Act (“Act”). Section 9.2 of the Act imposes a duty on a developer to adequately fund a reserve account for future improvements and repairs.  765 ILCS  605/9(c)(1), (2).  A “reasonable reserve” amount is a fact-based inquiry determined by (1) repair and replacement costs, and the (2) estimated remaining useful life of the property’s various structural, mechanical and energy components and its common elements.  (¶¶ 122-123, 129). 

The Court held that the question of whether the developer adequately funded the repairs reserve account wasn’t properly decided on a Section 2-615 motion.  And since the association properly pled that the developer breached fiduciary duties by failing to disclose known, latent defects in the property, the association stated a valid claim for breach of fiduciary duty (or at least one that survives a motion to dismiss).

Take-aways:

The Court found that a breach of fiduciary duty claim against a developer can survive almost 15 years after the developer’s last involvement with the property (the property was completed in 1996 and suit wasn’t filed until 2011).  The case also underscores the importance of adequately funding reserve accounts and demonstrates that claims premised on the City Ordinance sections governing false statements in real estate sales literature can be brought independently of common law fraud claims.  Henderson Square also illustrates the evidentiary showing a plaintiff must make to trigger the fraudulent concealment exception to the 10-year repose period applicable to construction claims.