APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Does an implied warrant of habitability exist in Illinois?
If so can it be waived?
Mr. and Mrs. Conyers purchased a house from Mr. Molloy, a builder. They alleged that due to a lack of ventilation in the attic water damage resulted in the house not being fit for habitation. Also, they say, they had no experience as housebuilders and relied on Molloy's expertise. A contract had been entered into and the following language is contained in paragraph 18 thereof:
"There are no warranties on either house except those manufacturers warranties that are in effect."
The Conyers' further allege that such language did not waive the implied warranty of habitability, but, if it did, such was null and void as against public policy.
Conyers' complaint was dismissed with prejudice, but no reasons were given on the record.
Although the Conyers' and Molloy each define the issues differently, we believe that the questions posed are more logically phrased in this order: (1) whether an implied warranty of habitability exists in Illinois; (2) whether the waiver provision in the contract for sale waived that warranty; and (3) if the waiver provision effectively waived the warranty, is the provision void as against the public policy of Illinois.
POINT I. There is a conflict among the Illinois appellate courts> on the issue of implied warranty of habitability. In Weck v. A:M Sunrise Construction Co. (1962), 36 Ill. App.2d 383, 184 N.E.2d 728, the First District Appellate Court recognized an action on an implied warranty of habitability where the contract for sale was signed before the completion of construction. The opinion quoted extensively from an English case, Miller v. Cannon Hill Estates, Ltd., 2 K.B. 113 (1931). The distinction between a completed and an uncompleted house was not very rational but served generally as a wedge in the assault on the caveat emptor doctrine. See Jaeger, Warranty of Habitability, part 2, 47 Chi.-Kent L. Rev. 1, 27-52.
The next year another district found no such action in a case that also involved an uncompleted house. (Coutrakon v. Adams (1963), 39 Ill. App.2d 290, 188 N.E.2d 780.) The court applied the doctrine of merger of the contract into the deed and the traditional doctrine of caveat emptor. The supreme court affirmed in Coutrakon v. Adams (1964), 31 Ill.2d 189, 201 N.E.2d 100, but specifically declined to decide whether an implied warranty of habitability existed in Illinois. It should be noted, however, that the supreme court approved an implied warranty of habitability in the landlord-tenant context. (Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208.) Many of the reasons cited in Little for an implied warranty are applicable to the new home buyer. The view that there is no implied warranty was followed by the Fifth District Appellate Court in Narup v. Higgins (1964), 51 Ill. App.2d 102, 200 N.E.2d 922.
In 1972, the Third District Appellate Court examined the question and in Hanavan v. Dye (1972), 4 Ill. App.3d 576, 281 N.E.2d 398, they stated that an implied warranty of habitability would be recognized. The court cited the massive support for the warranty in the Law Reviews and the accelerating trend to recognize the warranty in other states. The cases are collected in Annot., 25 A.L.R.3d 383 (1969). The Third District has followed this position in Garcia v. Hynes & Howes Real Estate Inc. (1975), 29 Ill. App.3d 479, 331 N.E.2d 630, and Elmore v. Blume (1975), 31 Ill. App.3d 643, 334 N.E.2d 431. No other district has passed upon the question recently.
• 1 Some of the reasons for the recognition of the warranty are set out in Wawak v. Stewart (1970), 247 Ark. 1093, 449 S.W.2d 922. That court stated that the contrast between the law of personal property and the law of real property is so great as to be indefensible. Why should a $10 iron have a warranty of fitness while the biggest purchase ever made by a majority of families, their home, is unprotected? The relationship of a mass producer-builder-seller and the purchaser is vastly different from the relationships from which the rule of caveat emptor arose. In the early days of the common law, the main concern of the parties was the land, and whatever structures were on it could be easily repaired by the new landholder. Today, the purpose is to buy a dwelling, rather than land per se, and most purchasers are not equipped to undertake major repairs. Like the buyer of an automobile, the purchaser of a house generally has neither the bargaining power to insist on a warranty nor the expertise to detect what could be wrong. Finally, but certainly not least, it seems only fair to put the burden of repairing defects in construction on the person who is (1) responsible for the defects, (2) is in a position to repair them and (3) is in a position to spread the costs of the repair. This is especially true since a significant amount of the defects can be so buried in the construction that it could be impossible to find them before buying, no matter how careful or thorough the inspection. In fact, the consensus is that there is no defensible reason why the warranty should not be recognized, ...