Kalkman v. Nedved
991 N.E.2d 889, 2013 IL App (3d) 120800 (2013)
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Rule of Law:
The requirement under the Illinois Residential Real Property Disclosure Act for a seller to disclose known material defects in a property's "walls" does not extend to an obligation to disclose known material defects in the property's windows and doors.
Facts:
- George and Maureen Nedved owned a lakefront home which they put on the market in 2009.
- Prior to the sale, the Nedveds completed a mandatory disclosure report as required by the Illinois Residential Real Property Disclosure Act.
- In the report, the Nedveds stated they were not aware of any material defects in the home's "walls or floors."
- Jason and Lucia Kalkman made an offer and purchased the home from the Nedveds in 2010.
- After the sale, the Kalkmans discovered that the windows, a patio door, and a garage door leaked significantly when it rained, causing water to saturate the carpet, floor, and walls.
- The Kalkmans also found that many of the windows would not close properly because they had been improperly installed or had warped.
Procedural Posture:
- The Kalkmans filed a complaint against the Nedveds in the circuit court of Knox County, a trial court, alleging a violation of the Residential Real Property Disclosure Act.
- The trial court held an evidentiary hearing and ruled in favor of the Kalkmans.
- The court found that the term "walls" in the Act should be interpreted broadly to include windows and doors and that the Nedveds had violated the Act by failing to disclose the defects.
- The trial court awarded the Kalkmans $25,478.21 in actual damages and $11,500 in attorney fees.
- The Nedveds, as appellants, appealed the judgment to the Illinois Appellate Court, Third District.
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Issue:
Does the Illinois Residential Real Property Disclosure Act's requirement for sellers to disclose known material defects in "walls" also obligate them to disclose known material defects in windows and doors?
Opinions:
Majority - Justice McDade
No. A seller’s obligation under the Illinois Residential Real Property Disclosure Act to disclose defects in the property’s walls does not also include an obligation to disclose defects in the windows or doors. The court's reasoning is based on principles of statutory construction. First, because the Act does not define the term "wall," the court must give the term its plain and ordinary meaning. A dictionary definition suggests a wall is a continuous surface "pierced by doors, windows, etc.," implying windows and doors are separate components, not part of the wall itself. Second, the Act is in derogation of the common law doctrine of caveat emptor and must therefore be strictly construed. Third, under the maxim expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), the legislature’s enumeration of 23 specific items for disclosure implies the intentional exclusion of unlisted items like windows and doors. The Act's own text confirms it is a disclosure of only "certain conditions," not all potential defects, and it is not a substitute for buyer inspections.
Concurring - Justice Lytton
Yes, I agree with the majority's narrow interpretation of the statute. While the court's legal analysis is correct based on the plain language of the Act, this outcome raises questions about the legislature's original intent. The result, where a seller can knowingly fail to disclose material defects in windows and doors without liability under the Act, seems contrary to the Act's purpose of protecting buyers. This issue should be brought to the attention of the legislature for potential review and amendment to better fulfill the Act's protective goals.
Analysis:
This decision establishes a strict, textualist interpretation of the Illinois Residential Real Property Disclosure Act, significantly limiting its scope. It clarifies that a seller's disclosure duty is confined only to the specific items explicitly enumerated in the statute, preventing courts from expanding those categories based on broader functional interpretations. The ruling reinforces that the Act modifies but does not eliminate the common law doctrine of caveat emptor, placing a greater burden on buyers to conduct thorough due diligence and inspections for any potential defects not covered by the statutory list. This precedent may prompt the Illinois legislature to amend the Act to include more specific components of a home, such as windows and doors, to close this identified gap in consumer protection.
