Fattah v. Bim
2015 IL App (1st) 140171
Ill. App. Ct.2015Background
- Developer Masterklad (owned by Mirek Bim) built a new Glenview house in 2005; a high rear patio/retaining wall was added later.
- Original purchaser Beth Lubeck bought the new house in 2007 and signed a written waiver/disclaimer expressly waiving the implied warranty of habitability; the waiver stated it would inure to successors and assigns.
- Lubeck sold the house to John Fattah in 2010; the sales contract included an "as is" addendum but did not reference the earlier waiver; Fattah testified he did not know of Lubeck’s waiver.
- Four months after Fattah moved in (Feb 2011) the patio collapsed; he sued the Bims alleging breach of the implied warranty of habitability.
- Trial court found latent defects caused the collapse but held Lubeck’s prior waiver (and the “as is” sale) bound Fattah; appellate court reversed and remanded for factual determinations on remaining warranty elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an original purchaser’s knowing waiver of the implied warranty of habitability binds a subsequent purchaser who did not know of the waiver | Lubeck’s waiver cannot bind Fattah because he had no knowledge and was not party to the waiver | Lubeck’s waiver (and its "successors/assigns" clause) binds successor purchasers like Fattah | Waiver did not bind Fattah; a subsequent purchaser who did not know of the waiver is not bound absent proof the purchaser knowingly agreed to it |
| Whether the “as is” sale from Lubeck to Fattah operated as a waiver of the implied warranty of habitability against the developer | The "as is" addendum between Lubeck and Fattah did not reference the implied warranty and therefore did not waive Fattah’s rights against the developer | The "as is" sale relieved Lubeck and foreclosed warranty claims | The "as is" provision did not bind Fattah vis-à-vis the developer; an "as is" clause alone is insufficient to disclaim the implied warranty unless it conspicuously references and explains that warranty |
| Whether defendants met the Petersen standard for enforcing a disclaimer/waiver against a purchaser | Fattah argued defendants failed to show a conspicuous, fully disclosed waiver that he knowingly accepted | Defendants relied on Lubeck’s signed waiver and its survival language to satisfy Petersen | Defendants failed to meet their burden—no evidence that Fattah knowingly waived the implied warranty or was party/assignee of the waiver |
| Remedy/remand: whether Fattah is entitled to judgment on the warranty claim now | Fattah sought recovery under the implied warranty after reversal | Defendants relied on waiver defenses; trial court had dismissed claim on waiver grounds | Court reversed dismissal and remanded for fact-finding on the remaining elements of the warranty claim (interference with intended use; manifestation within a reasonable time) |
Key Cases Cited
- Petersen v. Hubschman Construction Co., 76 Ill. 2d 31 (1979) (establishes implied warranty of habitability and strict standard for valid disclaimers)
- Redarowicz v. Ohlendorf, 92 Ill. 2d 171 (1982) (extends implied warranty to subsequent purchasers and limits recovery to defects manifesting within a reasonable time)
- Board of Managers of the Village Centre Condominium Ass’n v. Wilmette Partners, 198 Ill. 2d 132 (2001) (requires disclaimer to reference the implied warranty by name and shows when waiver is effective)
- Schoeneweis v. Herrin, 110 Ill. App. 3d 800 (1982) ("as is" clause alone does not effectively disclaim implied warranty of habitability)