Real Estate Law

Bank did not have presumptive right to possess property or right to possess property or to have receiver appointed, in foreclosure proceedings. As there was one dwelling unit, which was property owner's primary residence, entire property was residential real estate, meaning that mortgagor has presumptive right to possession. (HUTCHINSON and HUDSON, concurring.)

(Court opinion corrected 8/22/14.) Plaintiff energy company filed complaint in ejectment claiming ownership to property and alleging that tax deed from which Defendant claimed ownership of same property was void from lack of notice to energy company's predecessor in title. Section 2-1401 of Code of Civil Procedure is the only vehicle for Plaintiff to vacate a tax deed. Complaint in ejectment is not a valid attack on tax deed, as Section 22-45 of Property Tax Code establishes three very limited ways to set aside a tax deed. (GOLDENHERSH and CATES, concurring.)

(Court opinion corrected 8/21/14.) Plaintiff condo association raised question of fact as to whether developers' concealment of insulation led to their failure to reasonably fund the reserves. Plaintiffs adequately pleaded cause of action for breach of fiduciary duty, and alleged that developers knew, at time of transfer, that repair and replacement costs would be high due to substandard construction and materials. Questions of fact should not be decided by court on section 2-615 motion to dismiss. Developers had duty to ensure that assessments paid by owners during time that developers controlled Board allowed for reasonable reserves to be set aside in case of repair or replacement. (TAYLOR, concurring; PALMER, specially concurring.)

Court properly dismissed sua sponte Defendant's petition for relief from judgment per Section 2-1401 of Code of Civil Procedure. Defendant objected to his own failure to properly serve the State with notice of his Section 2-1401 petition, and State responded that although Defendant failed to comply with Rule 105, it had actual notice of petition which was sent by regular mail, and was present at two hearings after petition was filed. Defendant lacks standing to raise issue as to State's receipt of service. (LYTTON and SCHMIDT, concurring.)

Court proper entered order vacating, due to bidding error, a judicial sale and permitting a second sale. Defendant waived his right to object to Plaintiff's motion to vacate sale by failing to object to motion at time it was filed.(BURKE and McLAREN, concurring.)

(Modified upon denial of rehearing 8/5/14.) Bank filed mortgage foreclosure complaint to enforce lending agreements with developer for construction of retail shopping center. Anchor store purchaser of tract in shopping center filed counterclaim seeking declaration that, per its agreements with developer, it had certain covenants that ran with land and were binding against bank. Covenants for tax reimbursement and lien rights do run with the land, pursuant to intent of developer and tract purchaser, and bind bank to explicit terms of pertinent recorded documents and sequence of recording documents. Covenants touch and concern the property as a matter of law, and bank's predecessor was aware of tract purchaser's rights when it entered into construction loan agreement with developer. As tract purchaser's rights were in effect before mortgage and run with land, they were not extinguished by foreclosure. (BURKE and HUDSON, concurring.)