dissenting:
While I agree with the majority’s holding that plaintiff states a claim against defendant for negligent misrepresentation, I believe that the recorded zoning amendment subjects defendant to contractual liability under the title insurance policy and that plaintiff alleges facts supporting a violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (815 ILCS 505/1 et seq. (West 1996)).
The majority first concludes that the recorded zoning amendment does not render title unmarketable. The majority does not view the recorded amendment as a flaw that on its face would decrease the property’s market value. It sees a difference between marketability of title and marketability of land. I disagree. In this case, plaintiff alleged that nothing could be built on the property due to the zoning amendment. Because no dwelling unit can be built on the subject property, the market value of the land is greatly reduced. Thus, because the market value of the property is greatly reduced, title is adversely affected. Therefore, I agree with plaintiff that the recorded amendment was a defect in title adversely affecting its marketability.
Nor do I believe that, merely because the amendment is a zoning ordinance, it is excluded from coverage under the policy. The majority concludes that nothing supports the view that recording the amendment is an act of enforcement. I believe that the majority ignores the plain language of the exception, which states that zoning laws are excluded from coverage “except to the extent that a notice of the enforcement thereof or a notice of the defect *** has been recorded.” (Emphasis added.) “Enforcement” is defined in Black’s Law Dictionary as an “act of putting something such as a law into effect.” Black’s Law Dictionary 528 (6th ed. 1990). This is, in fact, what occurred in the present case. Recording the zoning amendment constituted a notice of the city’s mandate regarding the subject property. Alternatively, recording the amendment constituted notice of the defect. In either case, I would find that zoning matters specifically filed of record against the subject property constituted an exception to the exclusion provision of the title insurance policy.
Further, I believe that, once the matter was recorded, defendant had a duty to accurately report all defects of record that adversely affeet title. The prospective purchaser relies on the title insurer’s search to research the applicable law and the records before issuing the commitment and to provide warnings about areas in which the purchaser might find title surprises. Oak Park Trust & Savings Bank v. Inter-County Title Co., 287 Ill. App. 3d 647 (1997). The recorded amendment was not a law of general application, but a specific amendment affecting the subject property. The disclosure of title surprises such as the recorded amendment, which restricts the purchaser from building any dwelling unit on a parcel of real estate, is the sort of problem that a title insurance purchaser seeks to discover and insure against. Defendant had a duty to inform plaintiff of the recorded amendment and breached this duty by negligently failing to transcribe the recorded amendment onto the commitment.
Finally, the majority finds that, because the amendment was a matter of public record, plaintiff would have been put on notice of the amendment and, therefore, defendant’s failure to disclose the amendment was an omission of law not covered by the Act. However, the majority fails to consider that part of plaintiffs investigation consists of plaintiffs reliance on defendant to research and disclose recorded matters specifically identifying and affecting the subject property. During oral argument defendant acknowledged that it knew of the recorded amendment, yet chose to ignore it. Under these circumstances, I would find that such conduct and reliance state a claim under the Act. Accordingly, I respectfully dissent.