By Gary S. Mueller, Mueller & Associates, LTD
I hope this finds each of you doing well. In our office, the market remains strong as we have many closings set for October and into the first half of November. I am not sure why the market appears strong---especially in light of the lowered fees and interest rates for refinancing opportunities. Keep pushing hard and pounding. Make sure to stay relevant!
Every now and again, I will relay recent cases that affect our industry. The following are just some of the more recent cases and their outcomes:
- 900 North Rush LLC v Intermix Holdco, Inc (2019 Il App (1st) 181914---This case concerns a commercial lease and the attempt by a tenant to exercise a renewal option. In that case, the lease indicated that, if the tenant desires to exercise a renewal option on the lease of five more years pursuant to terms of the extension, the tenant had to execute a document showing that the extension terms were acceptable. When it went to sign the extension, the name on the notice included the name of the tenant’s sister company rather than the actual name of the tenant. The tenant signed the extension in its name and returned the executed paperwork to the landlord. At the end of the initial lease term, the tenant refused to vacate the premises, indicating that it had extended the lease. At the end of the initial lease term, the landlord demanded the tenant vacate the premises maintaining the extension was not validly executed. On appeal, the court affirmed the trial court’s order finding that the option was properly exercised;
- JCRE Holdings, LLC v GLK Land Trust(2109 Il App (3d) 180677---This case involves a dispute between adjacent land owners, who share a common wall, with the plaintiff owning the south property and the defendant owning the north property. In that case, there was a recorded Party Wall Agreement. The Agreement designated the shared wall as a common support wall. Additionally, the owner of the property to the north (who owned the property before the defendant) asked for and received permission from the owner of the property to the south (who owned the property prior to the plaintiff) if he could construct a sloped metal roof that would hang over a portion of the property to the south. The owners of the property to the south verbally agreed and the sloped metal roof was constructed. The roof hands approximately 32 inches off the common wall onto the adjacent owner’s property. Defendants in the case purchased the property from the original owner who had constructed the roof. The roof was still in place when the adjacent property was purchased by the plaintiff in the lawsuit. The deed for the purchase by the plaintiff clearly indicated that the transfer was subject to covenants, conditions, restrictions, reservations, and easements apparent or of record. In that case, the trial court found in favor of the plaintiff and against the defendant and found the roof overhang constituted a trespass and awarded injunctive relief to the plaintiff---the trial court ruled the defendant had to remove the metal roof at a cost (brought out at trial) of $12,760. In reversing the trial court, the appellate court held that the roof did NOT constitute a trespass and held that, in that case, the balancing of equities (a standard of review in injunction case) did not was in favor of the plaintiff and against the defendant; the court found the encroachment to be unintentional (even though the prior owners who agreed to the installation of the sloped metal roof even though it encroached onto the adjacent owner’s land, was not “intentional”);
- Alward v Jacob Holding of Ontario (2019 Il App (5th) 180332---This case addresses the adequacy of the titling of a quitclaim deed in determining the appropriateness of an attempted transfer of title. In this case, the owner/Plaintiff previously executed a quitclaim deed purporting to convey title to real estate to his son and daughter-in-law. There, the son/buyer was responsible for paying principal and interest on the loan against the property with no other compensated presented. As one might expect, the owner/Plaintiff had a mortgage with the Defendant. Apparently, the owner/plaintiff forgot that he had, prior to trying to transfer the property to his son, transferred the property into a land trust. Without knowledge of the state of the title, the son and daughter-in-law went to the defendant bank to secure a loan secured by the property at issue. While that refinancing was pending, the owner/Plaintiff attempted to dissolve the trust, transfer the property back to the owner/plaintiff, and deal with the property at issue as if it was his. When the owner/Plaintiff found out about the mortgage, he sued the bank claiming the bank inappropriately clouded his title and asked the court to declare a) the initial quit claim deed invalid as it was not extended from the trust company to his son, invalidate the mortgage his son had against the property, and remove the deed on title from the public record. There, the trial court found in favor of the bank and against the owner/Plaintiff. On appeal, the court REVERSED the decision of the circuit court finding that the quitclaim deed from the owner to his son was ineffective in transferring title to the property because the quitclaim deed came from the Plaintiff, personally, and, at the time of the transfer, the property was owned by a land trust and further held that the deed and subsequent mortgage were clouds against title that the bank had to remove;
- Estate of Siedler v Hopkins (2019 Il App (5th) 180574)---This case clarified the issue of when a legatee of a will can submit a successful offer to purchase a property from an estate. There, the will granted the petitioner the option to purchase a property at the appraised value or for a purchase price offered by a bona fide third party purchaser, whichever is greater. In that case, the executor secured an appraisal of the property (the independent executor, by the way, was the wife of the petitioner ---who sought to buy the property for the appraised value). According to the will, the proceeds of the sale of the property would become part of the estate. The defendant was to receive 26.66% of the estate. Upon hearing that the petitioner was interested in buying the property for the appraised value, the defendant offered $300 more per acre than the appraised value of the land. The defendant then indicated that the petitioner should have to pay the higher fee to buy the land or lose out on the right of first refusal. In that case, the petitioner successfully argued that the defendant, a beneficiary of the estate, did not qualify as a third party purchaser and, therefore, the defendant’s offer to buy the property for $300 per acre more than the appraised value did not trigger the obligation of the petitioner to match the higher purchase price.
Additionally, the Will County Bar Association Real Estate committee is considering the proposed Mobile Home Contract and the Exclusive Marketing Agreement for Mobile home sales that was suggested by your Association. Once approved, the matter will be forwarded to the Board of Directors for the Will County Bar Association for final approval. Obviously, I will keep all informed.
My best to you and to all you hold near and dear. Take care. Make time to smell the flowers and to be awed by the change of the colors of the leaves. Make time for you! You deserve it.