APPEAL from the Circuit Court of Cook County; the Hon. ALLEN
HARTMAN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal from the dismissal of plaintiff's action in which she alleged in her second amended complaint that she was a tenant in defendants' multiple dwelling building in the Village of LaGrange (the Village); that she was injured when she fell on an exterior stairway of the building; and that her fall was the proximate result of violations of certain provisions of the Building Officials and Code Administrators basic building code (the BOCA code).
Defendant Ben Kushner (hereafter defendant) *fn1 moved to dismiss, asserting in substance that the BOCA code was not applicable because defendant's building pre-existed the adoption of the code by the Village. The motion was granted, and this appeal followed.
1 In determining the propriety of the dismissal of an action, we are concerned on review only with questions of law presented by the pleadings (Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 328 N.E.2d 538), and we test the sufficiency of the complaint by ascertaining whether the essential elements of a cause of action are alleged (Williams v. RCA Corp. (1978), 59 Ill. App.3d 229, 376 N.E.2d 37).
It appears here that the Village adopted the BOCA code on April 28, 1969, and that section 105.1 thereof provides in pertinent part that the use and occupancy of any structure existing at the time the code was adopted by the Village "may be continued without change, except as may be specifically covered in the Basic Code or as may be deemed necessary by the building official for the general safety and welfare of the occupants and the public." Section 106 requires the conformance of existing buildings to the code under certain circumstances where repairs or alterations are made.
It is unquestioned that defendant's building pre-existed the adoption of the BOCA code, and that none of the exceptions in section 105.1 or the circumstances set forth in section 106 are involved here. Thus, because the purported cause of action was based upon alleged violations of the BOCA code, which by its own provisions was not applicable to defendant's building, we conclude that the court properly granted the motion to dismiss.
Plaintiff recognizes this conclusion to be correct, as she has abandoned on appeal her position in the trial court that a common law action had been stated based upon violations of the BOCA code. She argues here, however, that a cause of action was stated on the theory of implied warranty of habitability which was recognized in this State by Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208.
Jack Spring involved a forcible entry and detainer action against a tenant for possession of the premises she occupied and for rent withheld. As an affirmative defense, the tenant alleged that her apartment was uninhabitable and that her obligation to pay full rent under the lease was dependent upon the landlord's obligation to maintain the premises. The court stated:
"[W]e hold that included in the contracts, both oral and written, governing the tenancies of the defendants in the multiple unit dwellings occupied by them, is an implied warranty of habitability which is fulfilled by substantial compliance with the pertinent provisions of the Chicago building code.
[Our holding] does not alter the long established rule that liability for rent continues so long as the tenant retains possession of the premises [citation], and is applicable only to the factual situations here presented, the occupancy of multiple dwelling units." 50 Ill.2d 351, 366-67, 280 N.E.2d 208, 217-18.
It is the contention of plaintiff that this quoted language from Jack Spring permits an action based upon an implied warranty of habitability and, pointing to allegations that her injuries were proximately caused by violations of the Village building code, she maintains that such an action was stated in her second amended complaint. We disagree.
As noted above, the provisions of the BOCA code do not apply to defendant's building and because it is our view that the Jack Spring theory of implied warranty of habitability is based upon a failure of substantial compliance with the provisions of an existing and applicable building or housing code, we conclude that plaintiff has no such cause of action against the defendant under that theory.
We believe this conclusion is supported by the holding in Jack Spring that the required standard under implied warranty of habitability is fulfilled by substantial compliance with the pertinent provisions of the local building code. In so holding, the court relied heavily on reasoning in Schiro v. W.E. ...