dissenting:
I respectfully dissent. I disagree with the majority’s conclusion that the trial court properly dismissed count I of plaintiffs complaint. The majority discusses in great length the doctrine of the implied warranty of habitability and the expansion of its applicability. While I agree with the authority upon which the majority relies, I disagree with its conclusion that the implied warranty of habitability does not apply to a clubhouse.
As the majority recognized, the supreme court in Petersen did not focus its analysis on the habitability of a residence. Petersen, 76 Ill. 2d at 41. Rather, the inquiry considered whether a residence was reasonably suited for its intended use. Petersen, 76 Ill. 2d at 42. Given that the implied warranty has been extended to common areas in condominiums (see Herlihy, 92 Ill. App. 3d at 315) and to vacant common land (see Briarcliffe, 134 Ill. App. 3d at 405), I believe that it can be logically extended to a clubhouse. The majority’s attempt to distinguish Herlihy and Briarcliffe on the basis that the clubhouse in question was “not a part of the physical structure of the homes” (295 Ill. App. 3d at 286) is strained. I believe that the freestanding nature of the clubhouse should not preclude the application of the implied warranty of habitability where a party has alleged sufficient facts to demonstrate that the structure was not reasonably suited for its intended use. In this case, the record reveals that the clubhouse included a library, a meeting/party room, an exercise room, restrooms, and other rooms. These features are similar to those that would be found in a residence. Thus, an owner’s expectation that a residence should be reasonably suited for its intended use should likewise attach to a structure with similar features. I also believe that the trial court abused its discretion when it denied plaintiff leave to file an amended complaint that attempted to allege additional facts in support of its position that the clubhouse possessed residential features.
For the reasons set forth above, I respectfully dissent.