Real Estate Law

Plaintiff development company sued buyer for defaulting on real estate purchase contract for apartment buildings, and sought payment of deposit paid by buyer. Buyer raised affirmative defense that it had not determined its eligibility for tax credits for property. Buyer failed to file counter-affidavit in response to developer's affidavit in support of motion for summary judgment. Burden of proof can shift to non-movant to offer evidence, once movant has met its initial burden of production. Developer introduced persuasive evidence that buyer's pro forma acknowledged a determination of its eligibility and that buyer had entered into negotiations for sale of tax credits. (STEIGMANN, concurring; POPE, dissenting.)

Residential developers and Village entered into recapture agreement, with purpose to reimburse developer for costs of improvements that benefitted other properties. Village and developers had conflict of interest as to litigation strategy, which extinguished any duty of indemnification. Municipal Code does not restrict municipalities from vacating property once determining that vacating of street will serve public interest, and thus Village has authority to vacate property by ordinance. Developers have waived any complaints about required dedication of outlot to Village, as they received benefits of ordinance that enabled their construction of development. (NEVILLE and MURPHY, concurring.)

Property, adjacent to a planned improvement of intersection by county, was deeded to a trust; trust and county entered into sales agreement for strip of land in fee simple, and temporary and permanent easements. Nearby property was sold to company which obtained building permit to construct stormwater management facility. Court erred in finding company an assign of the county, as company was invited only to partake of use and enjoyment of easement, but county did not assign to company its right to use of property. Easement owner is entitled to necessary use of easement. Property owner's actions in resisting expansion of easement did not violate contract. (BURKE and SCHOSTOK, concurring.)

(Court opinion corrected 1/19/12.) Court properly denied motion to vacate summary judgment for bank, as successor in interest to original mortgagee bank, in mortgage foreclosure action. Bank's pleadings complied with Section 5/28 of Illinois Banking Act, as they included merger documents, and were sufficient to show that bank had rights to mortgage and note pursuant to two mergers involvoling original mortgagee. (QUINN and HARRIS, concurring.)