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Fattah v. Bim

Court of Appeals of Illinois, First District, Fifth Division

May 1, 2015

JOHN FATTAH, Plaintiff-Appellant,
v.
MIREK BIM and ALINA BIM, Defendants-Appellees

Page 923

Appeal from the Circuit Court of Cook County. No. 11 L 6937. Honorable Sanjay T. Taylor, Judge Presiding.

Voelker Litigation Group, of Chicago (Daniel J. Voelker, of counsel), for appellant.

No brief filed for appellee.

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion.

OPINION

Page 924

PALMER, PRESIDING JUSTICE.

[¶1] The patio on plaintiff John Fattah's single-family home collapsed four months

Page 925

after he moved in. Plaintiff had bought the house " as is" from its original purchaser, who had waived the implied warranty of habitability on the house when she purchased it new three years earlier. Plaintiff filed suit against defendants Mirek and Alina Bim, the developers of the house, alleging breach of the implied warranty of habitability. The circuit court held for defendants, finding that the original purchaser's waiver of the implied warranty of habitability bound plaintiff. On appeal, plaintiff argues: (1) the original purchaser's waiver of the implied warranty of habitability does not bind plaintiff, a subsequent purchaser who had no knowledge of the waiver, and (2) it is irrelevant that plaintiff purchased the house from the original purchaser " as is." Defendants have not filed a brief in response but we may consider the case on plaintiff's brief alone pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976). We reverse and remand.

[¶2] BACKGROUND

[¶3] Mirek Bim (Bim) was the president and owner of Masterklad, Inc. (Masterklad), a corporation principally engaged in the business of building houses. In the summer of 2005, Masterklad began construction of a single-family home at 3140 Henley Street, Glenview, Illinois (the house). Six months after the house was completed, Bim hired a subcontractor to add a 1,000-square-foot patio to the house. The patio was over six feet high, built on a grade sloping downward from the back of the house and supported by a retaining wall. A door opened onto the patio from the back of the house. While the house had three other entrances, namely, through the front door, a side door and the garage, the door to the patio provided the only exit from the rear of the house and served as access to the patio.

[¶4] In May 2007, Beth Lubeck purchased the new house from Masterklad for $1,710,000. In July 2007, she and Bim, as president of Masterklad, executed a " waiver-disclaimer of implied warranty of habitability" agreement. In the agreement, Masterklad " hereby and forever" disclaimed and Lubeck " knowingly, voluntarily, fully and forever" waived the implied warranty of habitability applicable to the new house. An " express warranties" provision in the agreement provided:

" The Agreement does provide that Purchaser will receive from Seller (the 'Warrantor') and [ sic ] express written warranty the form of which is attached to the Agreement. The Warrantor shall comply with the provisions of the express warranty and Purchaser accepts the express warranty granted therein as a substitute for the Implied Warranty of Habitability hereby waived by Purchaser and disclaimed by Seller."

[¶5] In the agreement, the parties acknowledged that, if a dispute arose between Lubeck and Masterklad, Lubeck would not be able to rely on the implied warranty of habitability as a basis for suing Masterklad and Masterklad could not use the implied warranty of habitability as a defense. Instead, she would rely on the express written warranties. In a " survival and benefit" provision, the parties agreed:

" The Waiver and Disclaimer of Implied Warranty of Habitability contained here *** shall be binding upon and inure to the benefit of Seller, Purchaser and their respective successors, assigns, heirs, executors, administrators, and legal and personal representative."

The agreement provided that it was made a part of the real estate contract between Lubeck and Masterklad. The record on appeal contains a copy of neither the sales contract between Lubeck and Masterklad

Page 926

nor of the express written warranty given in exchange for the waiver.

[¶6] In May 2010, three years after Lubeck purchased the house, she sold it to plaintiff " as is" for $1,050,000. There is no copy of the real estate sales contract between Lubeck and plaintiff in the record, only a copy of the " 'As Is' Addendum Rider" which, according its terms, was made a part of and incorporated into the real estate sales contract. The rider provides:

" Seller and Buyer acknowledge and agree that the Property is being sold to Buyer in its existing, 'as is' condition *** and Seller shall not be responsible for the repair, replacement or modification of any deficiencies, malfunctions or mechanical defects on the Property or to any any improvements thereon ***. Seller makes no representation or warranty to Buyer, either express or implied, as to the (1) condition of the Property, (2) zoning *** or (3) the suitability of the Property for the Buyer's intended use or purpose or for any other use or purpose."

Pursuant to the rider, Lubeck agreed that selling the property " as is" did not relieve her from her " applicable legal obligation to disclose any and all known material latent defects" to plaintiff. The sale to plaintiff closed in November 2010.

[¶7] In February 2011, four months after plaintiff moved into the house, the patio collapsed. In July 2011, plaintiff filed a complaint against defendants alleging they were the developers of the property and had breached the implied warranty of habitability on the house by delivering the house with latent defects in the construction and/or design of the patio that led to its collapse.[1] He asserted defendants were the developers of the house and had impliedly warranted that the house would be in a safe, fit and habitable condition and free from defects. Plaintiff claimed that the defects in the home were not discoverable by him at the time of purchase and, as a result of the defect and defendants' breach, he was now required to repair the ...


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