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Briar. W. Townhouse v. Wiseman Constr.

OPINION FILED JUNE 25, 1985.

BRIARCLIFFE WEST TOWNHOUSE OWNERS ASSOCIATION, PLAINTIFF-APPELLEE,

v.

WISEMAN CONSTRUCTION COMPANY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 6, 1985.

This action was instituted by plaintiff, Briarcliffe West Townhouse Owners Association, on behalf of its members for breach of an implied warranty of habitability of common land. This court previously conferred standing on plaintiff to bring such an action. See Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App.3d 163.

On remand to the trial court, additional evidence was presented, and the court entered judgment for plaintiff and against defendant in the amount of $25,443.03 plus costs. Defendant appeals.

The defendant, Wiseman Construction Company (Wiseman), is the developer of a planned unit development in Wheaton called Briarcliffe West Townhomes. The townhomes and lots were conveyed to individual owners and, in October 1976, Wiseman conveyed by quitclaim deed the common land to the plaintiff, Briarcliffe West Townhouse Owners Association (association), a not-for-profit corporation. The declaration of covenants granted the homeowners an easement to use the common elements.

The association proceeded to trial on its third amended complaint. Count I of the complaint alleged that Wiseman impliedly warranted to the association and individual members of the association that the townhouses and drainage systems were habitable and fit for their intended use; that serious and continuous storm drainage problems occurred and were brought to Wiseman's attention, but that corrective action had not been taken; and that the common areas have retained and held surface storm water, resulting in substantial damage. Count II of the complaint alleged that in March 1978, Wiseman was in control of the water distribution system when a water main broke; that, pursuant to the declaration, annexation agreement and subdivision improvement agreement, Wiseman was obligated to maintain the water distribution system until it was accepted by the city, which acceptance did not occur until May 1980; and that the association had incurred repair costs of $2,473.29.

At the close of the association's case, the trial court granted Wiseman's motion for a directed finding on count I, concluding that the association did not have standing to bring an action under the theory of implied warranty of habitability. The association appealed this order and this court reversed, holding that the association had standing to sue for breach of an implied warranty of fitness of the common land. See Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App.3d 163, 169.

On remand to the trial court, Wiseman obtained leave of court to file its sixth affirmative defense asserting that the implied warranty of habitability was disclaimed by paragraph 5 of the purchase agreements, and, in the alternative, that Wiseman has effectively limited the remedy to an action on the express warranty. The bench trial resumed on March 15, 1984, with Wiseman presenting its case in chief.

On April 4, 1984, the trial court entered judgment in favor of the association and against Wiseman for $25,443.03, plus costs. The court also entered judgment in favor of the association on the affirmative defenses.

Wiseman first argues that the association failed to prove a breach of the implied warranty of habitability. Its position, absent citation of authority, is that the determination as to whether a breach occurred must be based on the subdivision as a whole and not merely the condition of the common areas. Wiseman stresses that there are no defects in any of the 201 townhouses built or the numerous improvements to them, that the drainage is generally adequate, and that the vast majority of the common land is not even involved in this litigation.

This court has already determined, in the previous appeal of this case, that an implied warranty of habitability can apply to vacant common land. We stated:

"Defendant initially argues that there can be no implied warranty of habitability to vacant common land. We cannot agree. There may be circumstances in which a latent defect in the common land can affect the habitability of the living quarters. This has been recognized in Tassan v. United Development Co. (1980), 88 Ill. App.3d 581, 584 (in which one of the defects claimed was `[t]here was inadequate drainage of the surface waters in front of the building'); Kramp v. Showcase Builders (1981), 97 Ill. App.3d 17, 21 (defects in the septic system). See also Park v. Sohn (1980), 90 Ill. App.3d 794, 798, aff'd [in part, rev'd in part] (1982), 89 Ill.2d 453, as here material (faulty septic system and drain tiles).

* * * We perceive no real distinction between the buildings and the common land in the application of the public policy protecting a purchaser of a new or reasonably new home from latent defects in the building or the required amenities since the purchaser in a substantial degree must rely in either case on the expertise of the building-vendor creating the defect. [Citation.]" Briarcliffe West Townhouse Owners Association v. Wiseman Construction Co. (1983), 118 Ill. App.3d 163, 167.

• 1 The implied warranty of habitability, as announced by our supreme court in the landmark case of Petersen v. Hubschman Construction Co. (1979), 76 Ill.2d 31, requires the builder-vendor to provide a residence which is "reasonably suited for its intended use." (76 Ill.2d 31, 42.) This implied warranty is limited to latent defects which interfere with the purchaser's legitimate expectation that the house he is buying will be reasonably suited for a residence. (Park v. Sohn (1980), 90 Ill. App.3d 794, 798, aff'd in part, rev'd in part (1982), 89 Ill.2d 453; see Petersen v. Hubschman Construction Co. (1979), 76 ...


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