Real Estate Law

Wind energy system was built on property; property owners entered into windpark easement agreement with wind energy developer. Subcontractor that worked on tower filed complaint to foreclose m$3 million mechanic's lien against property. Court properly granted property owner's motion to dismiss complaint, and properly granted general contractor's motion for summary judgment. Subcontractor's work was an improvement to a trade fixture, which is not lienable; work was not improvement to real property, which is lienable. Although expensive to remove, the tower was not "incapable of removal", and this consideration does not outweigh fact that tower was intended to be temporary. (McLAREN and JORGENSEN, concurring.)

Commercial real estate firm filed broker's lien against a property in dispute of a real estate broker's commission. Plaintiff (the owner of iO Theatre, a comedy club) filed complaint to extinguish lien as improper. Defendants filed counterclaim for payment of their broker's commission. After bench trial, court awarded Defendants a $50,000 commission. Court properly denied Plaintiff's claim for attorney's fees, as Plaintiff cannot be considered a prevailing party by grant of an interlocutory motion for preliminary injunction, as it was not a final disposition on merits of Plaintiff's claim, and did not confer Plaintiff a permanent relief. Court's holding that Defendants were the procuring cause of the off-market property was not against manifest weight of evidence. (HARRIS and MIKVA, concurring.)

Plaintiff Condominium Board filed claims that condo building developed and sold by one Defendant and built by another Defendant suffered from many construction defects. Court erred in dismissing 2 counts of Board's 2nd amended complaint, as a plaintiff is permitted to bring a claim for breach of implied warranty of habitability against a builder absent a showing that developer-vendor is insolvent. Court erred in dismissing amended 3rd-party complaint of Defendant developer-seller, because bankruptcy trustee's assignment of any claims against builder cured any lack of standing that might have resulted from Defendant developer-seller's bankruptcy filing. (LAVIN and COBBS, concurring.)

Plaintiff filed mortgage foreclosure action against Defendants (including U.S. and U.S. Treasury Department) to obtain possession of property because Defendant failed to make payments on her note. A notice provision with an acceleration clause in a mortgage is a condition precedent and prescribes servicing requirements that a lender must comply with in order for lender to have a right to file an aciton to recover possession of a secured property. Bank failed to comply with condition precedent present in one paragraph in mortgage, and bank's failure to give homeowner the notice required by that paragraph divested lender of its right to file foreclosure action. Thus, court erred in granting bank's motion for summary judgment and entering order approving report of sale and distribution.(HYMAN and PIERCE, concurring.)

Court properly granted summary judgment for Plaintiff bank and entered judgment of foreclosure and sale, and confirmed sale. Court properly awarded possession of property to bank in its order confirming sale although Defendants were not listed in complaint as persons whose right to possess the property was sought to be terminated. Complaint substantially complied with Section 15-1504(a) of Mortgage Foreclosure Law and was thus more than sufficient to support request for order of possession against Defendants as a form of relief. (CONNORS and HARRIS, concurring.)

Court entered order approving sale of property in foreclosure action. As Defendant failed to timely raise Plaintiff's lack of standing as an affirmative defense in response to either the complaint or the amended complaint, court properly approved sale. Lack of standing is an affirmative defense that defendant alone has burden to plead and prove.Plaintiff sufficiently set for its capacity in bringing a cause of action under Foreclosure Law, by alleging in both complaints that it was the mortgagee under Section 15-1208 of Foreclosure Law.(LAMPKIN and BURKE, concurring.)