Real Estate Law

Plaintiff filed action for declaratory judgment and to quiet title. Parties had established land trust for marital home conveying interest to their three children, under Uniform Transfers to Minors Act, and parties later divorced. Plaintiff alleged that ex-wife and two of the children obtained loans secured by mortgage against the home without his knowledge and after the youngest child reached age 21. Plaintiff lacked standing as he did not have an ownership interest in the property, since his custodianship terminated as to each child when that child reached age 21 and he should have, pursuant to the Act, transferred the custodial property to the children. Failure to transfer the property did not prevent the custodianship from terminating. (CAHILL and J. GORDON, concurring.)

Parties entered into purchase agreement for commerciaql property for $124 million, with purchase price less million earnest money to be deposited with escrow agent two business days prior to closing. One commercial lender from Ireland backed out of financing due to economic conditions in Ireland, and parties executed six amendments to agreement. Closing did not occur, and Buyer sued to resciend contract and recover $6 million in earnest money. Court properly granted Seller's Section 2-615 motion to dismiss, as complaint failed to allege sufficient facts warranting rescission of contract under doctrine of impossibility of performance. Buyer's failure to obtain commercially-practical financing they sought was not an adequate ground to rescind contract under doctrine of impossibility of performance, as the potential for this inability was reasonably foreseeable. (PATTI and LAMPKIN, concurring.)

Court directed issuance of a tax deed and granting possession of property to a subsequent tax purchaser. Court erred because subsequent purchaser failed to provide notice, pursuant to Section 22-15 of the Property Tax Code, to decedent's daughter, who was a person with an interest in the property. Devisee (a person who is devised real property under a will) is "a party with interest" per Section 22-10 of Tax Code, as she has a right to redeem. Purchaser failed to make diligent efforts to locate daughter, whose New York address was in the court probate file, and who was represented by counsel in the probate case.(ZENOFF and HUDSON, concurring.)

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.)