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Real Estate LawThe newsletter of the ISBA’s Section on Real Estate Law

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Newsletter articles from 2013

7th Circuit tackles pay-if-paid clause in construction contract By Paul B. Porvaznik December 2013 Pay-if-paid and pay-when-paid contract terms raise multiple questions. Such as: while they are often used interchangeably in the caselaw and in construction parlance, is the pay-if-paid vs. pay-if-paid distinction anything more than semantic hair-splitting? And are they even enforceable?
Condo eviction defenses: What is germane? By Adam B. Whiteman February 2013 In light of the conflict now existing between the districts on the question of what defenses are germane in a condo eviction matter, the time is ripe for a legislative fix.
Condominium and homeowner association assistance By Nancy Hyzer April 2013 The Real Estate Law Section Council has considered The Condominium Ombudsperson Act (HB 1293) over the past few years and has consistently taken the position not to support the bill.
First District examines punitive damage standards in fraud suit By Paul B. Porvaznik December 2013 In K2 Development, LLC v. Braunstein, the First District addressed Illinois law’s compensatory and punitive damages guideposts in a convoluted real estate fraud suit filed by an LLC against one of its two members.
Hydraulic fracturing in Illinois—What is an owner to do? By William J. Anaya September 2013 Hydraulic fracturing operations present many opportunities to owners, but those opportunities involve risks that must be understood, quantified, analyzed, accepted or rejected or shared.
Illinois court enforces exculpatory and damage limitations provisions in construction contract By Paul B. Porvaznik November 2013 Plaintiff and defendant each had the power to define the limits of their respective obligations and this power extended to the parties’ allocation of the risk of loss.
Illinois court voids fraudulent real estate contract, applies ‘special relationship’ fiduciary duty rule By Paul B. Porvaznik December 2013 In Thorne v. Riggs, the Third District Court examined Illinois fraud in the inducement and fraudulent concealment law and discussed the content and scope of the “special relationship” fiduciary duty rule in the real estate investment idiom.
Illinois court: LLC member can file mechanics’ lien against property owned by that LLC By Paul B. Porvaznik December 2013 Peabody-Waterside Development, LLC v. Islands of Waterside, LLC examines the LLC-vs.- LLC-member distinction through the prism of a mechanics lien claim where the defendant LLC owns real property and is itself comprised of two separate LLCs, each holding a 50% interest  
The implied warranty of habitability and protecting your contractor and property vendor clients By Jason G. Schutte January 2013 This article will provide a brief history of the implied warranty of habitability, a description of who it applies to, the basic elements of a cause of action under the warranty and effective practices to disclaim the warranty.
Implied-in-fact contract claims and motions to reconsider By Paul B. Porvaznik November 2013 In 1801 W. Irving, LLC v. Splitt Architects, Ltd., a plaintiff developer sued an architect for breach of an oral contract and for implied indemnity in connection with the construction of a condominium building.
Is a failure to repair common elements germane to a forcible entry and detainer suit brought by a condo association against a unit owner? By Adam B. Whiteman January 2013 The Spanish Court decision effectively adds a judicially created provision to the Condominium Property Act that would permit a unit owner to withhold payment of their assessments if they believe the association is interrupting an expectation of “maintenance-free” living.
Kalkman v. Nedved, IL App. 3d (120 800) (2013) By Philip J. Vacco October 2013 This recent decision from the Third District Appellate Court stands to remind every buyer that the common law doctrine of caveat emptor is still alive and well in the Land of Lincoln.
May a condemnor abandon its take? By Bryan P. Lynch July 2013 The law is clear: When the owner is defending against the taking of property rights initially deemed necessary but subsequently abandoned, the condemnor should bear the burden of its own changed mind.
The New Property Tax Exemptions Rules for Not-for-Profit Hospitals and Hospital Affiliates in Illinois By Kelly M. Greco June 2013 This article first discusses the background of property tax exemption in Illinois and the supreme court’s decision in Provena. The article then discusses the Act’s amendment to the Code and how property tax exemptions for not-for-profit hospitals and hospital affiliates will be analyzed moving forward.
New radon requirements and changes to radon disclosure in 2013 By Kelly M. Greco February 2013 On August 17, 2012, Governor Quinn approved House Bill 4606, which created new radon requirements in Illinois as well as changes to radon disclosure by amending both The Child Care Act of 1969 and The Illinois Radon Awareness Act.
No good deed goes unpunished: HB 2832 will imbue the county recorder with unprecedented powers that will wreak havoc on real estate transactions By Adam B. Whiteman May 2013 The Illinois House has recently passed HB 2832, a bill which, if it becomes law, will create problems that will far outweigh its potential benefit.
Practical solutions for handling association issues when a condominium unit owner is in distress By Erica Crohn Minchella February 2013 When you are representing a homeowner of a condominium or townhome, the issues of the association should be considered as being on the same side, not in opposition, to that of the homeowner.
A stipulation? By Bryan P. Lynch August 2013 While stipulations can help narrow issues for trial, any indefinite language in a stipulation can cause considerable headache down the road, even depressing an owner’s property value.
Under Illinois law, what constitutes a lack of standing in mortgage foreclosures? By Steve Caravajal March 2013 Despite the fact the “lack of standing” is one of the most often asserted defenses in foreclosure proceedings, there are only a handful of recent appellate opinions which have addressed this ubiquitous issue. This article offers a look at one of the most recent opinions, Deutsche Bank Nat’l Trust Co. v. Gilbert, and discusses the effect it is likely to have or should have in foreclosure proceedings to come.
Waiving Special Exceptions 2 (a) and (b) is not always appropriate By Christine Sparks April 2013 This article addresses not waiving 2 (a) and (b) when there has been work done on the property or when work that has not been performed has already been contracted for.