the court now cause our final case the morning one one eight one three night the henderson square condominium association and all verses l ab townhomes l l c are you ready to proceed i am  the plaintiff file the complaint nearly fifteen years after all construction was completed at this project at most even with before your grace period the maximum amount of time to bring a construction laid claim is the construction related staff limitations ok i thought the drama court maybe consequences well i thought the counts one five were not construction related as to the drunker of your public were found that they were and my question was going to be used you know if it comes to i think it's important i mean we we get the same place anyway but it's important to know whether or not the circuit court and the appellate court certainly found that they were constructed correct and you're saying the case that has not been pled or alleged it doesn't make sense the in the complaint the plaintiffs allege that the concealment was the fact that the facts were hidden behind of white the drywalls their parents to finish the interior nothing to do with the water really is there any inconsistency there no the fact that water is infiltrating inside the building level up inside residential unit has been helped by a number of appellate court decisions have the relationship anymore if they if they if they anticipate those problems certainly that's they can't ignore something that's happened but the question here is what did the ship is no that you know if they knew that they were shoddy workmanship well i mean that's not you can't see well now they will find out about that until i'm long gone from here so you know what do i care i mean use people are kind of cheaper material as opposed to the more expensive the true it doesn't necessarily mean that it's it i guess you could say that's cutting corners and saving costs but doesn't mean this won't be a material impact that turned over to the unit holders they were not entitled to sit back and nothing for the remainder of the period until they felt ready  related claim or is this wrong misrepresentation well your honor i i frankly think it's a little bit of oh i mean what me and well i don't actually i don't think it's fraud but it's really more it goes toward marketing what the units are here i mean the fact that you have to make a statement or a pictorial representation means that the developer and this is what the statute says basically a developer cannot make a representation to a prospect a purchaser that the building or the unit that he or she is about purchasers considering purchasing has some quality to it that it doesn't have so the statement that the current this is the statement made apply because we didn't consider these to be construction related activities that were undertaken by the developer so but to answer your question a little further i don't necessarily think that this is a claim for fraud for the reasons that the appellate court stated you know the the ordinance is written as is written and just as amr pointed out in his concurring opinion that had the council wanted to make this a fraud claim a quote it's just a statement it doesn't say statement of fact it says that the developer has to have the intent to induce the proper prospect of purchaser to rely on the statements but you don't have actually to have reliance on the statements which is very different project so i think given you know this was an act of thirty years ago in the environment of condominium purchases becoming more popular and because there are apparently was an issue with developers giving misinformation about the units that rests respective purchasers were purchasing the council went ahead and enact that this ordinance now the the ordinance has been in effect for thirty years and this this provision isn't changed it's been the ordinance as a whole has been amended twice but this provision has remained the same the entire time so to the extent the city council wanted to make this into a private plane it's certainly and i also disagree with the trial court and agree with the apology or that this is not necessarily promissory fraud either you have here an intent to induce a purchaser to act and that doesn't necessarily mean that it's it's something in the future something in the future they're making a statement so that the purchaser can act in what they know so i for those had control of the the funds of the association but based on and what i thought i thought that that should not be a construction related activity because it really goes to the ownership of the property and should be subject to the five year statute in section i'm sure your honour's had read the report that they attached this isn't just missing insulation or you know if you cut corners as council suggests there are major major issues with the building to the point where weren't suggests that the only way to really in the complaint of when the defendants knew of the water problem and were well i believe that we allege that it occurred in late two thousand and seven early two thousand and eight but with respect to the insulation that was only one problem the water well initially counsel is relying on the warren report which only examined two of the garden units initially and then the report deny jennifer by issues with missing insulation however we did plead in our complaint that after we brought worton in and weren't told us about all these problems we did hire a contractor who came out and opened up the walls at several units and found there was little or no insulation in units other than those that had initially been experiencing water filtration and in addition there was no vapor barrier so that was one of the representation is that was made in the packet to the prospective purchasers by the developer was that there would be a vapor barrier installed and in the units and there certainly sort of misinterpreted what the appellate or it was saying that if you get help for it and its ruling found that the misrepresentations that were made in the packet coupled with the fact that he is that the developer did not adequately fund the reserves was sufficient to allege deceptive panned out so that the fact that they had not funded in a manner in which they should have and which actually gave an appearance to someone coming in to purchase knowing the representation is that were made and knowing what the prospective budget was it gave the appearance that the building was actually in way better condition than it was so it's the appellate court that was sufficient to allege some sort of deceptive conduct that would bring this cause of action within subsection  allege a whole stream of deceptive conduct on behalf of defendants which is sufficient to allege a pattern of deceptive conduct and we cite cases that deal with constructive fraud because of the relationship you have with  he didn't believe he believes that it was not reasonable for the association to have relied on the misrepresentation or the representation in the packet and the way in which the reserves were founded and that's not sufficient under the exception for producing areas where science is sufficient to allege a cause of action for project concealment here the whole point of having that exception for  is so that the person who is relying on the statement doesn't need to call in to check the person he considers his fiduciary for example in this case the developer is representing that he's been in the business for thirty years in a given quality building has all these features to it funds are reserved you know presumably that he's done many times before there is no reason for the association in this case to go ahead and investigate any of that before it discovered its water you know numerous years later so i think it was a little disingenuous for the workhouse so to make that argument because according to the report is i'm sure you saw there were there were many problems with the with the building and the fact th alderman who had taken a bribe to give zoning requirements to a property owner the city later came in on an eminent domain case and found out about the fraud and the council in the in the person who on the property allege that it was beyond the statute of limitations but the courts specifically said that they had no reason to believe that the alderman was doing any doing anything wrong until it discovered the fact us within that five year statute we have the allegations that we discovered the leaks in two thousand and seven two thousand and eight we didn't know the extent of the leaks until we heard work in two thousand and nine and we didn't really know about the insulation and other missing elements of the property until two thousand and eleven when the contractor came in and didn't bases in invasive openings into the building and found out that all of these things were in fact missing and we did balor complain but with respect to the code violation that we allege in our other claim you know i ready to address the issue that we don't believe that this is akin to a frog claim but i would like to address some of the amica says arguments that the statute itself is far too broad to have a cause of action i obviously disagree with the with the amec as i think that the you know although the the end of his seems to imply that this would cover all people who are purchasing property from anyone if you actually review the the ordinance it is limited to developers and condominium projects and when you look at the intent of the ordinance it further confirms that this is really limited to developers who are selling to prospect of purchasers of condominium developments so to the extent that i would be selling a piece of property you know to one of your honor's i don't think that the section would apply because i'm obviously not a developer and the ordinance wasn't meant to protect people like you from being but here's the question with regard to what the appellate court decision actually says there is that you know some concern that the appellate court held that any false statement rather than a false statement of material fact is actionable under the chicago municipal code this seems kind of exceptionally broad and would appear to render any statement which actually actionable do you agree with that  i don't necessarily agree with that your honor i think that it has to be decided on a case by case basis i know that the emic has was worried that puffery statements would be something that would be included in this but you know kin to born like you know it when you see it but you have to actually consider the context in which it is made and the consider that statement you know on its own in this case we don't have such statements and i think you know we have to stick to the facts of this case because again the developer here is representing that there's insulation representing that there's a vapor barrier representing that this is going to be a quality building it was anything but those three things so in this specific case i think the statements that were made which were clearly false would fall within the purview of the of the ordinance and i'm not saying that there might be some other case that could come along where you know someone made statement that you know could be considered property that would not be appropriate for the well the way the statute is written as is possible but again in the end because his acting asking the court to sort of like act as a legislator and revise the statute where it's you know the statues when in fact for thirty years and hasn't been changed at all you know except for the a couple other provisions the section thirty that we're talking about here about that the representation has not been changed so you know to the extent that the city council felt like that they needed to clarify or pontiff by that that to include material statements or some other type of statement it has had the opportunity to do that for the last thirty years and has not done so  define it also argues that the defendant and the end of his argue that the ordinance would effectively eliminate contractual defenses such as the internet and integration costs are all evidence in statute of frauds we don't believe that that's true because the those three things really only to the meaning of the contract or whether a contract is in existence where is the statements that are made under the ordinance here are really meant to induce someone to enter into a contract so those contract principles wouldn't necessarily be affected by any of the statements made with respect to the ordinance the defendants also asked the appellate court to construe the packet and the allegations that were made in the in the complaint to find that that they that the disclaimer in the in the packet was necessarily dispositive of whether or not insulation would be installed or not and frankly i think that argument is a little ridiculous because in some instances here there is no insulation at all installed so to the extent that you know  person is looking at these representations in the packet i'm sure they were expecting some type of insulation to be installed whether or not it was the type that was specified in the packet or not you know certainly doesn't alleviate the developer to not include any affirming the appellate court opinion would be a big policy change at a number of different levels and would increase costs for consumers not just consumers of affordable housing although contractor open up those walls what stopped them from doing that with thirteen years and there they are all morton investigators said that for several years prior to two thousand and nine unit owners had been complaining about water infiltration what the so she chose to do was hire her own people do minor repairs to the roof acting but they never hired one until two thousand and nine they didn't hire this contractor to open up the walls well there appear to be widespread instances of poor construction technique miss installed lintels or coping but in terms of water infiltration inside the units i have not seen anything in the first developer who is required to put together a property report disclosing a number of statements including estimated operating budgets and estimated reserves over the life span of that project you're talking about a developer that then has to set is required to appoint people to sit on the first in for more than usually they point themselves and then set a budget for that and when the new unit owners first you're these those are planning activities that are required by law and that are associated with the building of condominium units and also if you look at that the relief for busted they're not just simply saying well there was of this representation and pay me for the misrepresentation or say as a result of that you owe us for all the damages  occurred they certainly had a duty after water leaks occur at that point there could be no concealment that is there is something wrong and then raise the question why did that happen and what stopped them from hiring a contractor open up those walls the section thirty their argument that section thirty is limited to condominium developers it's doesn't follow that's not the kind of any importance is not an anti developer ordinance it is a pro consumer ordinance and bytes terms it applies to it says no person shall or person is defined not is just developers but anybody involved in the process of selling condominiums even a prospective purchaser which is defined as somebody who visits a project site or somebody who requests a copy the property or putting compas a prospective purchaser of a previously owned unit not a developer so because under the kind of property at