Real Estate Law

Townhome Owners Association sued master plan development, seeking a declaration that a license agreement entered into between developer and master plan development did not obligate the townhome property owners to pay yearly assessments to development for the use of its 25 miles of paths for biking and walking. Agreement between development and developer was unambiguous, and parties did not intend to create a covenant that would run with the land, as agreement provided that it would allow use of paths for 50 years, whereas a covenant running with the land binds successor grantees indefinitely. Developer never took the necessary step, for agreement to be binding on townhome owners, to amend the townhome declaration. That breach caused the development to become involved in suit, thus is required to indemnify it for its losses, including attorney fees. (McLAREN and BURKE, concurring.)

Plaintiff, owner of parcel of real estate used as an open-air parking lot, filed action seeking judicial declarations that its proposed development of multi-story commercial and residential building would not violate an easement held by Defendant company, which owned adjacent parcel of real estate used as a hotel. Easement, granted in 1984, provided that owner would have easement for parking, which would remain in force so long as property is operated as a hotel. Hotel fell into disuse from 1986 to 1999, when hotel re-opened after refurbishing. Because the easement provided that right to free parking would automatically terminate without any reentry or other act on the part of the grantor, easement does not contain a condition subsequent. Record did not establish continuous, adverse possession for 20 years, thus court improperly dismissed a count as barred by Section 13-101 of Code of Civil Procedure. Plaintiff presented evidence establishing that Defendant would not be substantially harmed by proposed modifications to easement for ingress and egress, thus established prima facie case for declaratory judgment action. (CUNNINGHAM and THEIS, concurring.)