Real Estate Law

Court properly dismissed 2 counts of Plaintiff's complaint against City, seeking to eject City from a disputed portion of real property. Court properly concluded that proprietor of plat of addition effected a statutory dedication of disputed property for public use. City accepted dedication for public use of its portion of disputed property. Court properly determined that disputed property was subject to public use.(HUDSON and HUTCHINSON, concurring.) 

(Court opinion corrected 4/6/17.)Dispute over construction defects discovered at a condominium complex. Condo association and its board of directors sued developers and president of Association's initial board of directors. Court erred dismissing suit, andin finding Association had waived its claims against Defendants by failing to follow mandatory dispute resolution procedures set forth in article 12 of declaration. As that article was later amended, Association could properly proceed directly to suit without first seeking mediation or arbitration. Releases are not alternate basis to affirm court's dismissal, as facts as alleged in complaint show that person who signed releases did not have authority to execute them. (LAMPKIN and REYES, concurring.)

Plaintiff filed condemnation suit to obtain easement rights over farmland so that it could build and operate a new underground pipeline. Landowner Defendants opposed suit and filed a traverse and motion to dismiss, which court denied. After jury trial on condemnation complaint, directed verdict entered for Plaintiff as to amount of just compensation it was required to pay to landowners. Plaintiff was not required to tender its land market survey to landowners during negotiations to satisfy good-faith requirement. Court properly barred testimony of landowners as to property value as directly contrary to their prior deposition testimony and as improper attempt to avoid court's bar of their expert appraiser's testimony. No evidence that jury had been prematurely discharged, as trial judge was scheduling jury's presence in courtroom to minimize inconvenience to jurors in allowing them to phone courthouse to determine if their appearance was required. (HOLDRIDGE and LYTTON, concurring.)

Plaintiff bank filed mortgage-foreclosure complaint and obtained $1.5 million judgment.Plaintiff, in supplementary proceedings, caused issuance of citation to discover assets and a 3rd-party citation to company, owned by Defendant's wife, that collected rents for Defendant's properties. Three local banks sought to intervene in supplementary proceedings, to assert adverse claims on rents held by that company. Court properly found that Plaintiff bank did not have priority over adverse claimants as to rents. Pursuant to Section 31.5 of Conveyances Act, rental agreements such as the forbearance agreements are beyond the reach of a 3rd party such as Plaintiff bank. Section 31.5 provides that assignment of rents is perfected upon recording. Mere recording does not affect who is entitled to rents until assignee enforces assignment under applicable law unless parties agree otherwise. (McLAREN and BURKE, concurring.)

Bank obtained foreclosure judgment on warehouse. Before confirmation, warehouse was destroyed by fire. Plaintiff company demolished remains of warehouse, and Plaintiff recorded a mechanic's lien upon completion of work. Bank was not a bona fide innocent 3rd-party purchaser, because through its conduct it induced Plaintiff to perform the work and file separate action. Plaintiff had a right to intervene in foreclosure action but was not required to do so. Legal remedy of statutory mechanic's lien precluded equitable lien as a potentially viable alternative claim for Plaintiff.(HUTCHINSON and SPENCE, concurring.)

(Court opinion corrected 3/30/17.) Court entered judgment of foreclosure and sale in Plaintiff's favor; and granted motion to confirm judicial sale. Court was within its discretion to deny Defendant's motion for discovery, and in granting Plaintiff's motion for summary judgment. Defendant had significant period of time to engage in discovery and to respond to Plaintiff's summary judgment motion, but failed to take timely action. Court did not err in simultaneously confirming judicial sale and granting its counsel's motion to withdraw. Defendant has not raised any claim of prejudice in confirming sale without allowing 21-day continuance.As Defendant failed to set forth argument under any one of the four bases listed in Section 15-1508(b) of Mortgage Foreclosure Law, court was required to confirm sale. (ELLIS and BURKE, concurring.)

Suit for fraud, breach of contract, and violations of Consumer Fraud Act, arising from purchase of a commercial property. Court erred in dismissing case with prejudice. The "as is" provision in purchase contract is not an affirmative matter that avoids legal effect of or defeats any claims in complaint. Many provisions in contract which delineate seller's duties and warranties must be read in conjunction with the "as is" provision. Affidavits of Defendants do not address Plaintiff's allegations of relationship that may constitute enterprise liability. Record is not yet fully developed, and discovery has not commenced on these issues. Court properly denied motion for attorney fees and sanctions, as there is not yet a "prevailing party" as provided in contract; and pleadings were not frivolous. (MOORE and CHAPMAN, concurring.)

(Modified upon denial of rehearing 5/5/17.) After bank acquired condo unit through foreclosure sale, Condo Association filed forcible entry and detainer action against bank for possession of unit, alleging that payments bank remitted to Association for post-sale common expenses after foreclosure sale were untimely. Section 9(g)(3) of Condominium Property Act is designed to encourage prompt payment of post-sale expenses, by setting their payment as a precondition to extinguishment of association liens for pre-sale expenses. Bank, within 16 months of judicial sale, fully paid amounts it owed for unit's post-sale common expenses, and thereby confirmed the extinguishment of Association's lien for pre-sale common expenses, and with it any entitlement to recovery possessed by Association. Thus, bank was entitled to summary judgment.(HOFFMAN and ROCHFORD, concurring).