504 Leawood in Swansea.

Mold growing on a wall at 504 Leawood in Swansea.

Mold growing on a wall near the garage at 504 Leawood Drive

Mold growing on the driveway at 504 Leawood Drive

Lamont and Genevieve Jones of Swansea filed a three-count lawsuit Jan. 21 in St. Clair County Circuit Court against Zachary and Megan Zelms, the former owners of their home, and their real estate agent Keller Williams Renaissance Centre.

The Jones allege that the Zelms lied on a disclosure form regarding flooding and recurring leaking problems in the home's basement at 504 Leawood in Swansea. The Zelms also are accused of failing to disclose that they were aware of material defects in the basement or foundation, including cracks and bulges.

According to the complaint, the Jones claim anticipated repairs to be in excess of $20,000. The cost to replace personal property is anticipated to be in excess of $10,000, and the loss of value is not yet known.

When they received the Residential Real Property Disclosure Report from the Zelms, the Jones decided to buy the home based on the answers in the report, according to the complaint.

After they owned the home, significant water damage to the lower level structure and personal property took place in April and August of 2004.

In the suit, the Jones claim that water is channeled into the home by way of the driveway. The driveway is several feet below street grade and during intense rain water accumulates in the area formed and overwhelms the drainage system.

The garage and an area of living space occupy the lower level of the home--both at the same elevation. During heavy rainfall, water flows freely into the garage and living space, and the Jones allege Zelms must have had this problem when they lived in the home.

The Jones claim the only practical repair to the home is to create a solid masonry wall in the front of the garage, and fill in the driveway. If completed, Jones claims he will lose the enjoyment of his attached garage and also the value of his home will be lowered.

"Rule 55 of the Residential Real Property Disclosure Act provides that where a person provides information on the report that they know to be false that person shall be liable in the amount of actual damages and court costs and the court may award reasonable attorney fees to the prevailing party," the complaint states.

Failure to reveal that there has been recurrent leaking in the basement is actionable instances of the violation of the duty on the part of the Zelms to affirmatively disclose negative information, according to the suit.

The Jones are seeking a judgment for contract rescission or a judgment in their favor in an amount equal to the value of the home when purchased, less the amount that the property is presently worth, or a judgment for an amount for the cost of repairs and any court fees and reasonable attorney fees.

Represented by Timothy Bates of Belleville, the Jones are also seeking damages against Keller Williams Renaissance Centre, their real estate agent in the sale of their home. They allege Keller Williams breached their fiduciary duty and those actions constitute an actionable deceptive practice of the Illinois Consumer Fraud and Deceptive Business Act in an amount to be determined at trial.

05 L 57 (20th Circuit)

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