SB0659 95TH GENERAL ASSEMBLY

LRB095 07038 AJO 27160 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
SB0659

Introduced 2/8/2007, by Sen. James F. Clayborne, Jr.

SYNOPSIS AS INTRODUCED:

765 ILCS 77/20
765 ILCS 77/25
765 ILCS 77/30
765 ILCS 77/35
765 ILCS 77/40
765 ILCS 77/50
765 ILCS 77/55

Amends the Residential Real Property Disclosure Act. Provides that prior to the sale of a residential property, the seller must have the property tested for radon and radon progeny by a licensed radon contractor and furnish a prospective buyer with the test results. Provides that if the test reveals that radon is present at a level in excess of 4.0 (pCi/L) pico curies per liter of air in the indoor atmosphere of the residential real property, the Seller must mitigate, repair, or alter the premises to reduce the radon level to below 4.0 (pCi/L) or give the prospective buyer notice of the right to terminate the sale agreement without loss of any earnest money or down payment.

A BILL FOR

AN ACT concerning property.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Residential Real Property Disclosure Act is amended by changing Sections 20, 25, 30, 35, 40, 50, and 55 as follows:

(765 ILCS 77/20)

Sec. 20. A seller of residential real property shall complete all applicable items in the disclosure document described in Section 35 of this Act. The seller shall have radon testing conducted by a radon contractor licensed under the Radon Industry Licensing Act on the residential real property and obtain the licensed radon contractor's written report concerning the presence of radon and radon progeny in the indoor atmosphere of the property. The seller shall deliver to the prospective buyer a copy of the licensed radon contractor's report and the written disclosure statement required by this Act before the signing of a written agreement by the seller and prospective buyer that would, subject to the satisfaction of any negotiated contingencies, require the prospective buyer to accept a transfer of the residential real property.

(Source: P.A. 88-111.)

(765 ILCS 77/25)

Sec. 25. Liability of seller.

(a) The seller is not liable for any error, inaccuracy, or omission of any information delivered pursuant to this Act if (i) the seller had no knowledge of the error, inaccuracy, or omission, (ii) the error, inaccuracy, or omission was based on a reasonable belief that a material defect or other matter not disclosed had been corrected, or (iii) the error, inaccuracy, or omission was based on information provided by a public agency or by a licensed engineer, land surveyor, structural pest control operator, or by a contractor about matters within the scope of the contractor's occupation and the seller had no knowledge of the error, inaccuracy, or omission.

(b) The seller shall disclose material defects of which the seller has actual knowledge.

(c) The seller is not obligated by this Act to make any specific investigation, except the radon testing required by Section 20, or inquiry in an effort to complete the disclosure statement.

(d) If a radon testing report states that the level of radon or radon progeny in the indoor atmosphere of the residential real property is 4.0 (pCi/L) pico curies per liter of air or above, the seller is obligated to (i) mitigate, repair, or alter the building or building design at the seller's expense so as to reduce the level of radon or radon progeny to a level under 4.0 (pCi/L) pico curies per liter of air in the indoor atmosphere of the residential real property, or (ii) give the prospective buyer written notice that the prospective buyer may, within 3 days after the prospective buyer's receipt of the radon testing report that states that the radon or radon progeny level is 4.0 (pCi/L) or more, terminate the contract or other agreement without any liability or recourse except for the return to prospective buyer of all earnest money deposits or down payments paid by prospective buyer in the transaction.

(Source: P.A. 90-383, eff. 1-1-98.)

(765 ILCS 77/30)

Sec. 30. Disclosure supplement or radon testing report supplement. If, prior to closing, any seller has actual knowledge of an error, inaccuracy, or omission in any prior disclosure document or radon testing report after delivery of that disclosure document or report to a prospective buyer, that seller shall supplement the prior disclosure document or radon testing report with a written supplemental disclosure or report.

(Source: P.A. 90-383, eff. 1-1-98; 91-357, eff. 7-29-99.)

(765 ILCS 77/35)

Sec. 35. Disclosure report form. The disclosures required of a seller by this Act shall be made in the following form:

RESIDENTIAL REAL PROPERTY DISCLOSURE REPORT

NOTICE: THE PURPOSE OF THIS REPORT IS TO PROVIDE PROSPECTIVE BUYERS WITH INFORMATION ABOUT MATERIAL DEFECTS IN THE RESIDENTIAL REAL PROPERTY. EXCEPT AS PROVIDED IN SECTIONS 20 AND 25, THIS REPORT DOES NOT LIMIT THE PARTIES' RIGHT TO CONTRACT FOR THE SALE OF RESIDENTIAL REAL PROPERTY IN "AS IS" CONDITION. UNDER COMMON LAW, SELLERS WHO DISCLOSE MATERIAL DEFECTS MAY BE UNDER A CONTINUING OBLIGATION TO ADVISE THE PROSPECTIVE BUYERS ABOUT THE CONDITION OF THE RESIDENTIAL REAL PROPERTY EVEN AFTER THE REPORT IS DELIVERED TO THE PROSPECTIVE BUYER. COMPLETION OF THIS REPORT BY THE SELLER CREATES LEGAL OBLIGATIONS ON THE SELLER; THEREFORE THE SELLER MAY WISH TO CONSULT AN ATTORNEY PRIOR TO COMPLETION OF THIS REPORT.

Property Address: ...........................................

City, State & Zip Code: .....................................

Seller's Name: ..............................................

This Report is a disclosure of certain conditions of the residential real property listed above in compliance with the Residential Real Property Disclosure Act. This information is provided as of ...(month) ...(day) ...(year), and does not reflect any changes made or occurring after that date or information that becomes known to the seller after that date. The disclosures herein shall not be deemed warranties of any kind by the seller or any person representing any party in this transaction.

In this form, "am aware" means (i) to have actual notice or actual knowledge of the existence of radon or radon progeny in the indoor atmosphere of the residential real property at a level of 4.0 (pCi/L) pico curies per liter of air or above, or (ii) with reference to any other condition, without any specific investigation or inquiry. In this form, "material defect" means a condition that would have a substantial adverse effect on the value of the residential real property or that would significantly impair the health or safety of future occupants of the residential real property unless the seller reasonably believes that the condition has been corrected.

The seller discloses the following information with the knowledge that even though the statements herein are not deemed to be warranties, prospective buyers may choose to rely on this information in deciding whether or not and on what terms to purchase the residential real property.

The seller represents that to the best of his or her actual knowledge, the following statements have been accurately noted as "yes" (correct), "no" (incorrect), or "not applicable" to the property being sold. If the seller indicates that the response to any statement, except number 1, is yes or not applicable, the seller shall provide an explanation, in the additional information area of this form.

Note: These disclosures are not intended to cover the common elements of a condominium, but only the actual residential real property including limited common elements allocated to the exclusive use thereof that form an integral part of the condominium unit.

Note: These disclosures are intended to reflect the current condition of the premises and do not include previous problems, if any, that the seller reasonably believes have been corrected.

If any of the above are marked "not applicable" or "yes", please explain here or use additional pages, if necessary:

.............................................................

.............................................................

.............................................................

Check here if additional pages used: .....

Seller certifies that seller has prepared this statement and certifies that the information provided is (i) based on the actual notice or actual knowledge of the seller of the existence of radon or radon progeny in the indoor atmosphere of the residential property, and (ii) with reference to any other condition, based on the actual notice or actual knowledge of the seller without any specific investigation or inquiry on the part of the seller. The seller hereby authorizes any person representing any principal in this transaction to provide a copy of this report, and to disclose any information in the report, to any person in connection with any actual or anticipated sale of the property.

Seller: ............................... Date: ...............

Seller: ............................... Date: ...............

THE PROSPECTIVE BUYER IS AWARE THAT THE PARTIES MAY CHOOSE, SUBJECT TO SECTIONS 20 AND 25 OF THE RESIDENTIAL REAL PROPERTY DISCLOSURE ACT, TO NEGOTIATE AN AGREEMENT FOR THE SALE OF THE PROPERTY SUBJECT TO ANY OR ALL MATERIAL DEFECTS DISCLOSED IN THIS REPORT OR THE RADON TESTING REPORT ("AS IS"). THIS DISCLOSURE IS NOT A SUBSTITUTE FOR ANY INSPECTIONS OR WARRANTIES THAT THE PROSPECTIVE BUYER OR SELLER MAY WISH TO OBTAIN OR NEGOTIATE. THE FACT THAT THE SELLER IS NOT AWARE OF A PARTICULAR CONDITION OR PROBLEM IS NO GUARANTEE THAT IT DOES NOT EXIST. THE PROSPECTIVE BUYER IS AWARE THAT HE MAY REQUEST AN INSPECTION OF THE PREMISES PERFORMED BY A QUALIFIED PROFESSIONAL.

Prospective Buyer: .................. Date: ...... Time: .... Prospective Buyer: .................. Date: ...... Time: ....

(Source: P.A. 90-383, eff. 1-1-98; 91-357, eff. 7-29-99.)

(765 ILCS 77/40)

Sec. 40. Material defect. If a material defect is disclosed in the Residential Real Property Disclosure Report or the radon testing report, after acceptance by the prospective buyer of an offer or counter-offer made by a seller or after the execution of an offer made by a prospective buyer that is accepted by the seller for the conveyance of the residential real property, then the prospective buyer may, within 3 business days after receipt of that report or the radon testing report by the prospective buyer, terminate the contract or other agreement without any liability or recourse except for the return to prospective buyer of all earnest money deposits or down payments paid by prospective buyer in the transaction. If a material defect is disclosed in a supplement to this disclosure document or to the radon testing report, the prospective buyer shall not have a right to terminate unless the material defect results from an error, inaccuracy, or omission of which the seller had actual knowledge at the time the prior disclosure document was completed and signed by the seller. The right to terminate the contract, however, shall no longer exist after the conveyance of the residential real property. For purposes of this Act the termination shall be deemed to be made when written notice of termination is personally delivered to at least one of the sellers identified in the contract or other agreement or when deposited, certified or registered mail, with the United States Postal Service, addressed to one of the sellers at the address indicated in the contract or agreement, or, if there is not an address contained therein, then at the address indicated for the residential real property on the report.

(Source: P.A. 90-383, eff. 1-1-98.)

(765 ILCS 77/50)

Sec. 50. The Delivery of the Residential Real Property Disclosure Report and the radon testing report provided by this Act shall each be delivered by:

(1) personal or facsimile delivery to the prospective buyer;

(2) depositing the report with the United States Postal Service, postage prepaid, first class mail, addressed to the prospective buyer at the address provided by the prospective buyer or indicated on the contract or other agreement; or

(3) depositing the report with an alternative delivery service such as Federal Express, UPS, or Airborne, delivery charges prepaid, addressed to the prospective buyer at the address provided by the prospective buyer or indicated on the contract or other agreement.

For purposes of this Act, delivery to one prospective buyer is deemed delivery to all prospective buyers. Delivery to an authorized individual acting on behalf of a prospective buyer constitutes delivery to all prospective buyers. Delivery of the report is effective upon receipt by the prospective buyer. Receipt may be acknowledged on the report, acknowledged in an agreement for the conveyance of the residential real property, or shown in any other verifiable manner.

(Source: P.A. 91-357, eff. 7-29-99.)

(765 ILCS 77/55)

Sec. 55. Violations and damages. If the seller fails or refuses to provide the disclosure document or radon testing report prior to the conveyance of the residential real property, the buyer shall have the right to terminate the contract. A person who knowingly violates or fails to perform any duty prescribed by any provision of this Act or who discloses any information on the Residential Real Property Disclosure Report or radon testing report that he knows to be false shall be liable in the amount of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party.

(Source: P.A. 90-383, eff. 1-1-98.)