Real Estate Law

Patio on Plaintiff's home, which he had bought "as is" for $1.05 million from original purchaser, collapsed 4 months after he moved in to home. Plaintiff sued developers of home, alleging breach of implied warranty of habitability. Defendants failed to meet burden to show Plaintiff knowingly waived implied warranty of habitability. "Successor and assign" provision in waiver agreement between Defendants and original purchaser does not bind Plaintiff, and "as is" rider agreement between Defendants and original purchaser does not bind Plaintiff to original purchaser's waiver of implied warranty of habitability. (McBRIDE and REYES, concurring.)

Court properly entered summary judgment for defendant tax purchaser on title company's complaint for breach of contract and unjust enrichment. Purchasers of property, through dismissed tax deed litigation, received warranty deed, but then original owner filed Section 2-1401, claiming that Defendant had acquired property by fraud or deception, which court granted. Subsequent purchasers cannot show that defendant offered warranty as inducement to purchase; thus, no action for breach of warranty, and title company stands in shoes of subsequent purchasers.(CUNNINGHAM and CONNORS, concurring.)

(Court opinion corrected 4/24/15.) Court properly granted summary judgment to bank, as assignee of mortgage, in mortgage foreclosure action. Bank proved capacity to bring foreclosure action, as holder of indebtedness by being bearer of note and through its supporting affidavit. (HOLDRIDGE and WRIGHT, concurring.)

Parties entered into oral agreement that Defendants, in auction business, would procure buyers for Plaintiff's home which was in her own revocable trust of which she was trustee. Defendants successfully found buyers, but buyers reneged on purchase. Section 15 of Residential Real Property Disclosure Act exempts a trustee, as a fiduciary in course of administration of a trust, selling her own trust's real estate from requirement that she provide a disclosure form to buyers.The fact that trustee and beneficiary are the same person does not erase fiduciary role Plaintiff assumes. Thus, Defendants had no duty to provide Plaintiff a disclosure form to give to buyers, under Section 20 of the Act, and their alleged failure to provide form was not a breach of contract or fiduciary duty and not negligence. (CATES and CHAPMAN, concurring.)

Platntiff filed mortgage foreclosure action. Court properly granted Plaintiff's motion for summary judgment and motion for order approving report of sale and distribution and order for possession and eviction. Upon entry of foreclosure judgment, mortgage merges into judgment and eliminates contract, and thus judgment is controlled by statute, not contract. A plaintiff is entitled to statutory interest rate from date of foreclosure judgment and before confirmation of sale. (PALMER and REYES, concurring.)