Real Estate Law

Mechanics Lien Act does not restrict the availability of liens for architects, engineers, land surveyors, or property managers to services performed only for the raising, lowering, or removal of a house, and can include services done for the purpose of improving property. Resolution of issue as to whether owner of property at time contract for services was entered into knowingly permitted developers to enter into contracts regarding the property involves genuine issues of material fact, and thus summary judgment is precluded. (FREEMAN, THOMAS, KILBRIDE, KARMEIER, BURKE, and THEIS, concurring.)

Plaintiff bank was granted judgment for foreclosure and sale. After sale, bank moved to confirm the same. Foreclosure judgment stipulated that a deficiency judgment would be granted only where Defendant's "liability has not been discharged in bankruptcy." Defendant never appeared before the court had provided no evidence that debt had been discharged in bankruptcy. Requiring that Plaintiff prove the debt not discharged in bankruptcy would constitute an improper shifting of the burden of proof. Court's insistence that Defendant provide "further documentation was contrary to statute.(CARTER and O'BRIEN, concurring).

Plaintiffs sued title insurance company seeking declaration that it was obligated to defend them in underlying action filed by Plaintiffs' neighbors who sought to prevent Plaintiffs from placing improvements on an easement for access to their property.Plaintiffs raised at least the possibility of coverage under the policy, thus triggering Defendant's duty to defend. Failure to provide ingress and egress to a property can render title unmarketable. Underlying suit placed at issue whether easement could actually be conveyed, and thus placed at issue marketability of Plaintiffs' title.(BURKE and SPENCE, concurring.)

Homeowners Association (HOA) filing declaratory action, seeking to enforce a restrictive covenant prohibiting operation of 2 daycare businesses, against homeowners. Court properly entered summary judgment in favor of homeowners, as plain language of HOA declaration shows that drafters did not intend it to apply to homeowners' daycare businesses, and are permissible personal businesses as identified in declaration. (CARTER and HOLDRIDGE, concurring.)

Plaintiffs filed complaint against Defendant construction company for flooding on their property allegedly caused by company developing the adjacent property, and added count for inverse condemnation against City which owned streets company had developed. Court properly granted City's section 2-615 motion to dismiss inverse condemnation count with prejudice. Allegations are insufficient to support Plaintiffs' claim of a taking for public use where alleged increased water drainage was coming from entire development, including streets, through detention or draining basins. Development was not a public property, and acceptance of dedication of streets inside development does not give rise to a taking where drainage was from basins. (LYTTON and SCHMIDT, concurring.)

(Court opinion corrected 10/20/15.) Court properly granted summary judgment for Plaintiff bank in foreclosure of marital home owned by a land trust. Wife's signing of a letter of direction to trustee of land trust shows her consent to the mortgage, a joint debt, and thus the defense of tenants by the entirety, even if allowed by statute, was not available to prevent foreclosure. (PIERCE and SIMON, concurring.)

Court's decision to rely on survey to establish boundary between parties, who owned neighboring residential parcels of lakefront property, is not against manifest weight of evidence.Plaintiff's surveyor located boundaries of Defendants' property, pursuant to legal description of the property, with reference to government survey monuments and a properly placed marker. Method used by surveyor who had previously done survey of Defendants' property appears arbitrary and inferior to alternative methods. (JORGENSEN and HUDSON, concurring.)

(Modified upon denial of rehearing 10/15/15.) Bank filed foreclosure action and named Plaintiff as a junior lienholder. Plaintiff defaulted, and bank purchased property at judicial sale. Title company purchased property and resold it. Service affidavits (showing personal service was unsuccessful, and service on Plaintiff was made via publication) on file in foreclosure action gave title company inquiry notice that Plaintiff's interest was not properly extinguished, and thus, complaint may not be dismissed on ground that title company was a bona fide purchaser. Service defect appears on face of record, so title company had inquiry notice of lack of personal jurisdiction over Plaintiff, and pending proceedings drew more attention to a potential defect in personal jurisdiction.(JORGENSEN and HUDSON, concurring.)

Court properly granted Defendants' Section 2-1401 petition to vacate agreed order and judgment entered in eminent domain action. Invalidity of 1991 ordinance, upon which condemnation action was premised, had been established as a matter of collateral estoppel. Meritorious defense of invalid ordinance was established, and Defendants' due diligence requirements were satisfied. Court within its discretion in not holding evidentiary hearing, given unique equitable circumstances of case and extensive volume of information and facts available to court during proceedings. (LIU and HARRIS, concurring.)