Does the Court Have to Award Attorneys’ Fees?

An interesting case, Cantrall v. Bergner, 2016 IL App (4th) 150984 (December 19, 2016) Sangamon Co., started out as a breach of the Illinois Residential Real Property Disclosure Act, and turned into a fee-shifting dispute. Here’s what happened:

The plaintiff entered into a contract to purchase the defendants’ home in March of 2011. The defendants provided the Illinois Residential Real Property Disclosure, which stated that they were not aware of leaking or material defects in the chimney, ceilings or roof. During the home inspection, the inspector found damage and rotting wood. The parties entered into an addendum which stated that the defendant could complete the repairs himself, if he was competent to, or he could hire a contractor. The defendant chose to make the repairs himself, even though he had no knowledge of roofing.   Although her inspector suggested that she have a roofer make sure the work was done correctly, the plaintiff chose not bring a roofer out to evaluate the defendant’s handywork.

You can guess what happened next. The plaintiff closed on the house, moved in, and the roof leaked. She contacted the defendants, but they refused to pay for the repairs. She paid $2500 out of her pocket for repairs, and then filed suit against the defendants on three counts – violation of the Illinois Residential Real Property Disclosure Act, fraudulent concealment, and breach of contract. Both parties requested a reward of attorneys’ fees. The court found in favor of the plaintiff on the breach of contract claim, but agreed with the defendants on the other two claims. The court denied attorneys’ fees to both parties.

The parties appealed for attorneys’ fees. Essentially, the matter hinged on whether the language in the contract required the court to award fees. The contract specifically stated that “all costs, expenses, and reasonable attorney’s fees incurred by one party in enforcing said party’s rights under this contract may be recovered from the other party.” The operative word is “may”. The contract did not state “shall be recovered” or “must be recovered”; it only said “may be recovered”.   The court determined that if it says “may” and not “shall” or “must”, it is in the court’s discretion whether or not to award attorneys’ fees. The court did not award attorneys’ fees to either party.

So what do we learn from this case?

Well, first of all, it’s probably not a good bet, as a purchaser, to allow a home-seller to make repairs when he is unqualified to do so. As a seller, it’s not a good idea to make repairs you are unqualified to do either.  It’s one thing when the seller is putting sliding doors back on the track, fixing cabinet hinges, attaching battery-operated smoke and carbon monoxide detectors, touching up paint or putting in light bulbs.  It is an entirely different matter when the seller is repairing a roof, the fascia, the chimney, the foundation, or the plumbing, mechanical and electrical systems.  Unless the seller is a licensed and qualified roofer, plumber, electrician, etc., he should not be attempting those types of repairs.  In Cantrall v. Bergner, the seller tried to save a few bucks, but it ended up costing him a fortune in legal fees, not to mention time and just the general stress and hassle associated with the matter.

Second, as a Buyer, when there are major repairs being done to any real estate you’re purchasing, it’s probably a good idea to have a professional come out and re-check the Property after the work is done and before the closing.  In Cantrall v. Bergner, had the Buyer spent a few hundred bucks for her inspector or a professional roofer to evaluate the repairs, the matter would have been caught and resolved before closing. She would have saved money in repairs and legal fees and court costs.  She would also have saved time and the headaches that her new home must have caused.  After all, it took more than five years to resolve this matter.

Last, don’t rely on the fee-shifting provision as drafted in your contract. Do you need to change up the wording a bit?  By inserting the words “must” or “shall” you can avoid any surprises from the court.