A northwest suburban condominium association cannot sue its buildings’ architect for breach of implied warranty, a 1st District Appellate Court panel has ruled.

First recognized in Illinois in 1972, the theory of implied warranty is based on the premise that home buyers don’t have an eye to detect defects in construction the same way a home builder would. As such, it allows home buyers to sue for latent defects found at a later time.

And while the theory can apply to builders, painters and other workers who physically work on a home, it doesn’t apply to an architect who designed the home.

The panel’s opinion affirms a Cook County Circuit Court decision to dismiss allegations that architect Hirsch and Associates LLC breached an implied warranty of habitability when it designed three defective buildings in 2000 for Park Point at Wheeling.

The 1st District held architects fall into a category of design professionals whose work cannot be held responsible for the physical defects for which a party can seek relief.

A 33-page opinion issued last week on Wednesday authored by Justice Margaret Stanton McBride held it would be a “considerable extension of the law” to extend the theory to architects while case law traditionally applies it only to those who perform the home’s physical construction.

“Architects are professionals who design and create plans and specifications for the construction of buildings or structures,” McBride wrote. “In contrast, home builders or contractors are responsible for the physical implementation of the architect’s plan. Therefore, it is not the architect’s work — it is the builder’s work — which creates the tangible structure.”

Construction on Park Point’s midrise condos was completed in 2004. However, by 2007, the buildings started showing defects like water and air infiltration that damaged windows and patio doors and masonry walls that lacked support.

The condo association’s board of managers first filed a lawsuit in 2008. Its allegations were against Hirsch and other entities involved in the buildings’ design and construction such as general contractor Smith and Sons Inc., which it alleged was insolvent and couldn’t cover an award to compensate for $4 million in necessary repairs.

The association’s lawsuit asserted that the buildings’ problems were a product of both faulty construction and faulty design. It alleged all named defendants breached an implied warranty of habitability when they built and sold the condos.

Circuit Judge Lynn M. Egan dismissed the association’s implied warranty allegations against the architecture firm with prejudice.

Historically, the principle of caveat emptor — Latin for “let the buyer beware” — left little recourse for new home buyers if the builders constructed a defective residence.

Caveat emptor operated on the understanding that both home buyers and sellers understood what an adequately built residence entailed. As such, it prevented the buyer from suing if they found defects after the transaction.

Those dynamics began to change in the last century as building methods became more specialized and buyers could no longer adequately inspect their potential new home.

In response, the Illinois Supreme Court adopted the implied warranty of habitability principle to recognize the growing reliance on home builders’ competency and honesty as well as the fairness in placing defective construction repair costs on the builder that initially created the defects.

The class of defendant to which the theory can apply has expanded slightly since its adoption in 1972.

For example, the 3rd District applied it to a home developer-seller in 1980 in Tassan v. United Development Co., 88 Ill App. 3d 581, 410 N.E.2d 902, holding that purchasers from developer-sellers depend on their ability to hire competent contracts to erect a sound residence.

The same district extended the doctrine to a painting subcontractor in 1983 in Minton v. The Richards Group of Chicago, 116 Ill App. 3d 852, 452 N.E.2d 835, in which the panel held a home’s buyers had recourse against the subcontractor because the builder-seller dissolved and the painters created defect of paint that began peeling 90 days after taking possession of the home.

In its interlocutory appeal, Park Point argued the theory should be extended to Hirsch because an architect’s work results in a tangible structure in the same fashion as builders’ work.

The panel rejected the board’s argument that architects are subject to the warranty because of an implied obligation to perform their tasks in a “workmanlike manner.”

“Architects are not workmen, and they are not obligated to perform their professional services in a workmanlike manner. A workman is a person ‘who labors’ or is ‘employed in manual labor, skilled or unskilled,’” McBride wrote, citing Black’s Law Dictionary to note the definition does not include professional persons.

Thomas S. Flanigon, a partner at Adler, Murphy & McQuillen LLP who represented Hirsch, said the panel’s opinion is significant for architects because an opposite ruling could have exposed them to future litigation. He also said the panel created a thorough road map of the implied warranty theory’s inception, evolution and why it shouldn’t apply to architects and other design professionals.

Hirsch was also represented by Lawrence S. Gosewisch, a partner at Adler, Murphy & McQuillen.

Jeffrey S. Youngerman, a partner at Flaherty & Youngerman P.C. who represented the association, declined to comment on the pending litigation.

Stephen D. Sharp, of counsel at the firm, also represented the association but could not be reached for comment.

The panel affirmed the dismissals of all the defendants, but for Smith & Sons. It remanded the case back to the trial court to determine whether the company is insolvent or not.

Justices Stuart E. Palmer and Robert E. Gordon concurred in the opinion.

The case is Board of Managers of Park Point at Wheeling Condominium Association v. Park Point at Wheeling, LLC et. al, 2015 IL App (1st) 123452.