Harlem-irving Realty, Inc. v. Alesi

Plaintiff-buyer brought suit to rescind a contract for the sale of a dwelling structure by reason of defendants-sellers failure to comply with "An Act relating to installment contracts to sell dwelling structures" (Ill. Rev. Stat. 1979, ch. 29, par. 8-21 et seq.) (hereinafter referred to as "Code Violation Disclosure Act"). The Act defines "installment contract" and provides that contracts for deeds shall become voidable at the election of the buyer if a certificate regarding government dwelling code violations is not attached to the contract or if the seller does not warrant in the contract either that he has received no notice of code violations within 10 years of the contract date or that all such notices (and violations) are disclosed in the contract. (Ill. Rev. Stat. 1979, ch. 29, par. 8.22.) Defendants do not deny that the subject transaction falls within the definition of installment contract set forth in the statute, nor is there any factual dispute as to defendants noncompliance with the Act, but, rather, defendants contend Page 153 that the provisions of the statute are inapplicable to the contract at hand. Defendants claim exemption from the Code Violation Disclosure Act requirements by reasoning that the subject transaction, which involves property held in a land trust, does not fall with the "common and ordinary definition" of a real estate installment contract, as codified in section 1 of "An Act in relation to certain contracts involving property held in land trusts and providing penalties for the violation thereof" (Ill. Rev. Stat. 1979, ch. 29, par. 8.31) (hereinafter referred to as "Land Trust Disclosure Act"). Unlike the definition provided in the Code Violation Disclosure Act, which makes no distinction as to when title to the property passes, the Land Trust Disclosure Act applies only to situations where title to property is retained by the seller until all or a specified portion of the purchase price is paid. Defendants argue that because the instant transaction contemplated the conveyance of title to plaintiff-buyer at closing, with defendants-sellers to take a purchase money mortgage to cover part of the purchase price, it does not fall within the latter definition and, therefore, is not an installment contract.