2014 IL App (4th) 130397
Ill. App. Ct.2014Background
- Messerlys purchased the home at 105 Shelby, Gillespie, Illinois in 1998 for $87,000; Boehmke signed the Residential Real Property Disclosure Report prior to closing.
- The disclosure form listed 22 items; Boehmke answered Yes only to question 4 (basement/foundation defects) and No to others, with other sections incomplete.
- Plaintiffs alleged the disclosure was false/incomplete because it failed to reveal material defects in the plumbing system and foundation causing damages.
- State Farm’s 1991 letter to Boehmke advised the fund determined settling caused the foundation cracks, not mine subsidence, and such damage was excluded from Boehmke’s homeowner’s policy.
- Plaintiffs asserted damages from the defects; the trial court granted summary judgment for Boehmke; on appeal, the appellate court reversed, finding genuine issues of material fact as to knowledge and whether the Act was waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of the Act duties due to incomplete disclosure | Messerly—no waiver; incomplete form does not bar claims | Boehmke—lack of full disclosure waives right to recovery | Not waived; incomplete disclosure does not bar claims under the Act |
| Knowledge of plumbing defects at closing | Disputed knowledge; evidence shows defects and prior repairs | Deny knowledge of material plumbing defects | Issue of fact exists as to defendant’s knowledge at closing |
| Knowledge of foundation defects caused by settling | Defendant knew of settling and failed to disclose under §25(b) | No failure to disclose; disclosed some items | Issue of fact exists as to defendant’s knowledge and whether failure to answer §17 violated §25(b) |
Key Cases Cited
- Curtis Investment Firm, Ltd. Partnership v. Schuch, 321 Ill. App. 3d 197 (2001) (seller must complete all applicable items; disclosure cannot be waived by closing despite incomplete form)
- Woods v. Pence, 303 Ill. App. 3d 573 (1999) (knowledge of defects can create triable issues when prior repairs suggest chronic problem)
- Hogan v. Adams, 333 Ill. App. 3d 141 (2002) (incomplete/misleading disclosures can create liability when seller knew of broader defects)