dissenting:
The majority’s reading of Petersen v. Hubschman Construction Co., 76 Ill. 2d 31 (1979), is flawed. I respectfully dissent in order to preserve the legal principles established in Petersen.
In Petersen, this court held that the mere fact that a residence is capable of being inhabited does not satisfy the implied warranty of habitability. Petersen, 76 Ill. 2d at 41. For this reason, Justice Ryan, writing for a unanimous court, noted: “The use of the term ‘habitability’ is perhaps unfortunate. Because of its imprecise meaning it is susceptible of misconstruction.” Petersen, 76 Ill. 2d at 41. The Petersen court explained that the implied warranty of habitability is “an implied covenant by the builder-vendor that the house which he contracts to build and to convey to the vendee is reasonably suitable for its intended use.” Petersen, 76 Ill. 2d at 41. Therefore, the Petersen court focused its analysis on whether a residence was reasonably suited for its intended use, not on whether a residence was capable of being inhabited. Petersen, 76 Ill. 2d at 41-42. Accordingly, Petersen established that a purchaser has a right to expect a home that is reasonably fit for use as a residence, and not something that is merely fit as a survival training model for the military.
Here, the majority apparently would not diminish the homeowners’ rights to an interest in nothing more than the bare military standards. Nevertheless, the majority’s opinion deprives the homeowners of their right to expect quality construction in the amenities for which they paid when buying their homes.
The Association’s complaint alleges that an amenity which is a part of each homeowner’s residence, the clubhouse, is not reasonably suited for its intended use. This is in accordance with the Petersen court’s direction. Specifically, the Association alleges that, upon selling the clubhouse to the Association, defendants implicitly warranted that the clubhouse was “suitable for the uses and purposes for which [it was] intended.” The Association further alleges that “[i]n breach of said implied warranty, Hoffman and Ahmanson [defendants] developed, constructed and sold the Clubhouse with inadequate design, workmanship, and materials” causing: (1) the installation of substandard roofing materials; (2) the installation of roofing shingles with an insufficient number of nails; (3) inadequate roofing ventilation; (4) the improper installation of a heating and ventilation system in the pool area; and (5) “[a]ny and all other defective conditions as set forth in the Reports attached hereto as Exhibits B and C, respectively.” The Association also alleges that the referenced defects “were latent defects to the Clubhouse and not reasonably discoverable at the time of sale. Said defects have caused the Clubhouse to be unfit and not reasonably suited for the intended use.”
Because this case is before us on a section 2 — 615 motion to dismiss, we must determine only whether the allegations of the complaint, when considered in the light most favorable to the Association, are sufficient to state a cause of action. See Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86-87 (1996). Accepting the Association’s allegations as true, those allegations sufficiently state a cause of action for breach of the implied warranty of habitability. A clubhouse built with these defects is not reasonably suited for its intended use.
The majority’s holding ignores that the clubhouse is a part of each homeowner’s residence. Membership in the clubhouse is mandatory upon purchase of a residential unit in Bloomfield Club. Each homeowner pays a proportion of the maintenance costs, insurance costs, and taxes for the clubhouse. The clubhouse contains a library, a meeting and party room, an exercise room, and restrooms. Certainly, if these rooms were contained within the four walls of one homeowner’s residence, the alleged defects would affect the habitability of the residence. In condominium ownership, the individual owner’s residence consists of his or her unit and the common elements, which in this case include the clubhouse. The defendants’ failure to properly construct the clubhouse is therefore a violation of the implied warranty of habitability because the clubhouse is not reasonably suited for the purpose intended.
Illinois courts have long recognized that, in the context of community ownership, a homeowner has a right to expect that all common areas will be properly constructed. In Herlihy v. Dunbar Builders Corp., 92 Ill. App. 3d 310 (1980), for example, the purchasers of condominium apartments sued the developer vendor and the general contractor, alleging construction defects in many of the building’s common areas. Among these alleged defects were the following: cracking driveway pavement; a structurally defective pedestrian ramp, loading dock, and staircase; improper and deficient caulking of windows, frames, sills, and balcony doors; unsafe anchoring of balcony railings; crumbling retaining walls; and inadequate heating, cooling, and ventilation systems in the laundry room and other common elements. The Herlihy court held that the implied warranty of habitability attaches to such common elements. The court reasoned that construction defects in shared portions of the building interfere with a purchaser’s legitimate expectation that the structure be reasonably suited for its use as a residence. Herlihy, 92 Ill. App. 3d at 315-16.
Similarly, in Briarcliffe West Townhouse Owners Ass’n v. Wiseman Construction Co., 118 Ill. App. 3d 163 (1983), an association representing homeowners in a planned unit development sued the developer, alleging that the vacant common land in the development had a defective water drainage system. The Briarcliffe court rejected the developer’s argument that the implied warranty of habitability does not apply to vacant common land. The court reasoned: “We perceive no real distinction between the buildings and the common land in the application of the public policy protecting a purchaser of a new or reasonably new home from latent defects in the building or the required amenities since the purchaser in a substantial degree must rely in either case on the expertise of the building-vendor creating the defect.” Briarcliffe, 118 Ill. App. 3d at 167.
The majority appears to have based its decision on the fact that the clubhouse is not a part of the physical structure of the Bloomfield Club homes. The freestanding nature of the clubhouse, however, should not preclude application of the implied warranty of habitability. This would produce inequitable results. Under this rationale, if the types of rooms found in the clubhouse were instead located in a single multiunit building that contained residential units, then the homeowners would be able to recover under the implied warranty of habitability. Application of the doctrine should not depend upon the happenstance of a certain type of development layout. Homeowners are forced to rely upon a builder’s expertise regardless of the development’s layout.
When the court in Petersen recognized a cause of action for breach of the implied warranty of habitability in the context of the sale of a new home, it considered “the vast change that has taken place in the method of constructing and marketing new houses.” Petersen, 76 Ill. 2d at 39-40. The majority here has failed to consider the vast change that has taken place in the method of constructing and marketing residential developments such as Bloomfield Club, where homeowners share many common elements. No doubt, many homeowners are persuaded to buy homes in certain planned unit developments based on the common elements offered. These common elements are part and parcel of what is, in many instances, “the largest single investment” of a person’s life. See Petersen, 76 Ill. 2d at 40. The implied warranty of habitability should protect a homeowner’s interest in the common elements of this investment, just as it does the individual units.
I disagree with the majority’s conclusion that the implied warranty of habitability does not apply to the alleged defects in the clubhouse. I would therefore hold that the circuit court erred in dismissing count I of the Association’s complaint.
I would also hold that the circuit court abused its discretion in denying the Association leave to file its amended complaint. The amended complaint alleges facts to support the Association’s position that the homeowners purchased residences that encompass the unit and all common elements, including the clubhouse. The amended complaint alleges that the homeowners had a right to expect that the completed structure be fit for the purpose intended, and that defendants breached their duty to properly construct the residence. The Association should have been allowed to file the amended complaint.
For the foregoing reasons, I respectfully dissent. Accordingly, I would reverse and remand for further proceedings.
JUSTICES HEIPLE and HARRISON join in this dissent.