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05/17/94 JEAN-PIERRE OLLIVIER v. JOHN ALDEN

May 17, 1994

JEAN-PIERRE OLLIVIER, ANNE OLLIVIER, AND CHARLES OLLIVIER, PLAINTIFFS-APPELLANTS,
v.
JOHN ALDEN, SR., JOHN ALDEN, JR., AND RONALD R. ALDEN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 90-LM-4377. Honorable Emilio B. Santi, Judge, Presiding.

McLAREN, Geiger, PECCARELLI

The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The plaintiffs, Jean-Pierre, Anne and Charles Ollivier, appeal from an order of the circuit court of Lake County rejecting their claims of breach of contract, breach of the implied warranty of habitability and fraudulent misrepresentation against the defendants, John, Sr., John, Jr., and Ronald R. Alden, in connection with the sale by the defendants to the plaintiffs of real estate in Waukegan.

On November 14, 1984, the plaintiffs entered into a written contract to buy a 132-year-old residence at 321 N. Utica Street, Waukegan, from the defendants. The dwelling had been extensively renovated by the defendants and was being used as a four-unit rental apartment building. The defendants disclosed to the plaintiffs at the time the contract was written that the dwelling had leaks in the roof and basement. The following typewritten provisions were added to the printed-form real estate contract:

"(J) Sellers guarantee that the roof and basement shall be free of leaks and that all utilities shall be in good working order at the time of closing; this guarantee shall not survive the closing.

(K) Sellers shall install drain spouts and gutters prior to closing, and the same shall be in working order at the time of closing."

The closing was set for December 19, 1984. On November 29, 1984, Charles Ollivier, a coplaintiff and attorney for the plaintiffs throughout this matter, wrote a letter to the defendants' attorney in which he requested the following modifications:

"Para. 11 (J)--Warranty. I have no disagreement with a specific limitation on the warranty, but it must survive the closing as such defects may not be directly or immediately apparent. I anticipate no problems in those areas as the Aldens voluntarily disclosed the leaks in the basement and the roof and, of course, because of the care with which they built. If they say they are fixed, I believe them.

I would like an additional condition, perhaps under para. 11(H): that at the time of closing there are no unresolved tenant complaints."

In response to Ollivier's letter, the defendants' attorney amended the guarantee contained in paragraph J to read:

"(J) Sellers guarantee that the roof and basement shall be free of leaks and that all utilities shall be in good working order at the time of closing; this guarantee shall not survive the closing for a period longer than 6 months thereafter. " (Emphasis added.)

Additionally, the defendants added the following line to paragraph H of the printed contract: "That there shall be no unresolved tenant complaints at the time of closing."

The sale was closed pursuant to the amended contract on December 20, 1984. Thereafter, the defendants attempted on at least four occasions to fix the leaks referred to in the contract, but they were unable to do so. In December 1985, the defendants refused to attempt any further repairs to the building. By 1986, paint which the defendants had applied to the original exterior pealed away, exposing some rotted wood. The plaintiffs also became aware of numerous other problems with the building.

The plaintiffs filed a two-count complaint against the defendants on December 21, 1990, alleging breach ofthe implied warranty of habitability and breach of contract. On June 7, 1991, the plaintiffs filed an amended ...


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