concurring in part and dissenting in part:
I concur with the majority’s decision that the trial court erred by dismissing the four counts in which plaintiffs sought rescission on the basis of mistake, as well as the two counts based upon violations of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1987, ch. 121½, par. 261 et seq.). However, I must depart from that portion of the majority’s decision remanding the two counts brought under the Act for a determination of whether the misrepresentation was one which plaintiffs could have discovered using ordinary diligence, or whether, as a matter of law, plaintiffs were not entitled to rely on the misrepresentation. In my opinion, the counts alleged under the Act adequately state a cause of action upon which recovery may be based.
The pleadings in the case before us, if proved, establish that defendants misrepresented that a single-family residence could be built on the lot. It could not.
In dismissing plaintiffs’ complaint, the trial court concluded that the misrepresentation was one of law and therefore not actionable since all the parties to a transaction are presumed to be equally capable of knowing and interpreting the law. This worn and oftentimes obscure distinction between misrepresentations of fact and misrepresentations of law, while perhaps applicable to actions brought in common law fraud, is inapplicable to actions brought under the Act.
The Act specifically addresses “unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 121½, par. 262.) The explicit language of the Act indicates that the Act encompasses more than misrepresentations of material facts.
The allegation that defendants misrepresented that the vacant lot would be suitable for the construction of a home can aptly be categorized as any one of the following: deception, false pretense, or false promise. Moreover, courts have held that the Act is to be utilized to the utmost degree in an attempt to eradicate all forms of deceptive and unfair business practices and to grant appropriate remedies to injured parties. Aurora Firefighter’s Credit Union v. Harvey (1987), 163 Ill. App. 3d 915, 924; Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495.
The Act was, in my opinion, a departure from common law intended to protect the public from conduct such as that employed by defendants here. Everyone, including a responsible real estate broker, suffers when a seller or broker is allowed to misrepresent any question, whether it be one of fact or law. Thus, regardless of whether defendants’ misrepresentation is one of fact or law, or whether plaintiffs could have discovered it with the exercise of ordinary diligence, it is nonetheless actionable under the language and spirit of the Act.
The case of Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, clearly expresses my opinion of the wide scope of the Act. The Duhl court stated:
“Section 2 of the Act (which was held to apply to misrepresentations by real estate brokers to prospective purchasers in Beard v. Gress (1980), 90 Ill. App. 3d 622, 413 N.E.2d 448), indicates a decisive move on the part of the Illinois legislature to enact broad protective coverage of consumers from the many types of deceptive or unfair selling and advertising techniques used by businesses. [Citation.] The sections clearly expand the consumers’ rights beyond those of the common law [citation], and provide broader consumer protection than does the common law action of fraud. [Citation.] There is a clear mandate from the Illinois legislature that the courts of this State utilize the Act to the utmost degree in eradicating all forms of deceptive and unfair business practices and grant appropriate remedies to injured parties. [Citations.]
Since the Act affords even broader consumer protection than does the common law action of fraud, it is clear that a plaintiff suing under the Act need not establish all of the elements of fraud as the Act prohibits any deception or false promise. [Citation.] And it is clear from the language of the Act, particularly its reference to false promises, that liability is not limited to existing material facts.” (Emphasis added.) 102 Ill. App. 3d at 495.
I nonetheless recognize that this court has previously held that a misrepresentation of law is equally fatal to a cause of action whether brought in common law fraud or pursuant to the Act. (City of Aurora v. Green (1984), 126 Ill. App. 3d 684, 687.) However, that case adheres to the common law rule without explanation and without analysis or consideration of the broad wording of the Act and its “including but not limited to” language.
In addition to those reasons expressed above, I also believe we should consider this problem from the proper perspective. The purchase of a homesite and home is probably the largest single transaction the average American will make. Many families will only buy one home in a lifetime. A buyer should be afforded the reasonable expectation that the seller and real estate agent will tell the truth. The average buyer and some lawyers do not understand the distinction between questions of law and questions of fact. The average buyer is unsophisticated and in all probability has never seen a zoning ordinance or a building code. This situation is only exasperated by the fact that national real estate chains such as the one in the instant action frequently market their services with such slogans as “We set the standards,” “Put number 1 to work for you,” and “Depend on the marketing team.” Then, when a buyer does depend on such representations and finds that he cannot build a single-family home on a lot he purchased solely for that purpose, the broker hides behind the common law fraud rule that it can only be held responsible for a misrepresentation of fact. The added allegation in this case of the seller-broker telling the buyers that they do not need an attorney also aggravates the situation. We hold the buyers responsible for knowing the law and then ignore an inducement that causes them not to get legal representation. Such inducement by the seller-broker substantially reduces the opportunity of the buyers to ascertain the truth of the representation before acting.
For these reasons, I concur with the majority’s decision to reverse the trial court’s judgment, but I would hold that counts IX and X brought pursuant to the Act state a proper cause of action.