Kalkman v. Nedved (IL)


Summary: Under the Residential Real Property Act, seller’s obligation to disclose defects in walls did not include the obligation to disclose defects in windows or doors when the statute specifically enumerated walls, but not windows or doors.


Kalkman v. Nedved, 2013 Ill. App. (3d) 120800 (Ill. App. Ct. 2013).


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Facts: The Kalkmans (the Buyers) and the Nedveds (the Sellers) entered into a contract for the purchase and sale of a home. Before the Buyers made an offer to purchase the home, however, they made “shockingly slight inquiry into the condition of the home,” as the trial court found. In addition, the Buyers spent little or no time performing inspection even though they spent a weekend in the home as a condition to execute the contract. Other inspections revealed a mold problem, which was resolved by offsetting the purchase price, and a potential issue with the windows, but otherwise no significant problems. The sale was finalized, and the Buyers moved in. Soon the Buyers discovered problems in the windows as well as the patio and garage doors, including leaks of water when it rained.

Under Section 35 of the Residential Real Property Act (the Act), sellers are required to disclose defects on their property by indicating on the mandatory disclosure report whether they know of any defects in the items listed. 765 ILCS 77/35 (West 2010). The 23 items on the disclosure report include walls, but not windows or doors. There is no catch-all provision. Here, the Sellers’ disclosure report stated that the Sellers did not know any defects in all of the 23 items. The Sellers conceded, however, that they knew of defects in the windows and doors. The Buyers sued, alleging a violation of the Act and common law fraud.

The trial court granted partial summary judgment in favor of the Sellers on several issues. The remaining issue before the court was one of statutory construction; specifically, whether walls should be interpreted as including windows and doors under the Act. The trial court said yes by broadly construing the Act. The trial court framed the legislative intent of the Act as protection of homebuyers from hidden defects. Because windows and doors serve the same purpose as walls by protecting the interior from the outside elements, they could not be interpreted as being specifically excluded from the disclosure report. Windows and doors, therefore, were part of walls. Accordingly, the Sellers had to indicate on the disclosure report that they knew of defects in the windows and doors. Because the Sellers did not do so, the trial court awarded actual damages for remediation of the defects totaling $25,478.21 and attorney fees of $11,500 to the Buyers.


Holding: Reversed. Contrary to the trial court, the appellate court narrowly construed the Act. First, the plain language of the Act contained neither a provision specifically enumerating windows or doors nor a catch-all provision. So the issue was narrowed down to how broadly the statutory term, “wall,” needed to be construed in order to determine whether it included windows or doors. Noting that no statutory definition of wall existed in the Act, the appellate court turned to a dictionary to ascertain the “ordinary and popularly understood meaning” of wall. People v. Sheehan, 168 Ill. 2d 298, 306 (Ill. 1995). The dictionary consulted was Random House Dictionary of English Language (2d ed. 1987), which defined wall as “any of various permanent upright constructions having a length much greater than the thickness and presenting a continuous surface except where pierced by doors, windows, etc.” The definition impliedly excluded windows and doors from the definition of wall.

In addition, the appellate court rested on two maxims of statutory construction: (1) strictly construe the statute if derogatory to the common law, and (2) expressio unius est exclusio alterius, meaning “the expression of one thing is the exclusion of another.” Williams v. Manchester, 228 Ill. 2d 404, 419 (Ill. 2008). Following the foregoing rules, the Act had to be narrowly construed because otherwise it would be derogatory to the common law rule of caveat emptor. Moreover, the omission of windows and doors from the disclosure report meant that they were excluded. Therefore, the appellate court held that the Sellers’ statutory obligation to disclose defects in walls did not include an obligation to disclose defects in windows or doors.

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By: ATG Underwriting Department | Posted on: Tue, 09/03/2013 - 2:51pm