Posted: under Agents, Buyers, Litigation, Sellers.
Well, I”m no trial lawyer but in Illinois state courts the answer is two-fold: a) when you have a cause of action where such right existed at the time of common law (thanks to our old British colonial past); b) if the legislature creates a new cause of action and specifically sets forth the right to a jury trial. Of course there really are virtually zero civil jury trials these days anyways, right? Or you have cases like below where there was NOT a legal right to a jury trial but the trial judge gave them one anyways.
Here’s the case, Anderson v. Klasek, No. 5-07-0390…sort of your typical suit brought under the Residential Real Property Disclosure Act, et al, where home buyer sues seller and listing agent. The plaintiff/buyers brought separate counts under the Residential Real Property Disclosure Act, the Real Estate License Act, and the Consumer Fraud Act.
Since all of these Acts are not based on the common law and a jury right is not set forth within them, there’s no right to a jury trial said 5th District Appellate court. So, Plaintiff gets a second chance…read the case, I don’t like his chances anyways.
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Aug 21 2009
Posted: under Buyers, Litigation.
That’s the discussion here regarding a recent Oklahoma real estate buyer who was a tad upset when she found out there had been a triple murder at a property she’d just purchased. The Buyer was upset that the Sellers and listing agent made no disclosure of the grisly murders nor had any duty to do so.
What about in Illinois? Seller or agent duty to disclose?
I don’t think so, generally a Seller or listing agent who doesn’t make an affirmative false statement is fine. I read a case where the listing brokers were making general positive statements about a property like “good buy” and “sound condition” and “shouldn’t have any problems with it.” Later the purchasers sued under the Consumer Fraud Act when termite infestation was found, but lost (Harkala v. Wildwood Realty, Inc.).
Many of the post-closing defect cases involve a fraud count but that first element for a fraud case is:
(1) a false statement of material fact; (2) known or believed to be false by the party stating it; (3) intent to induce the other party to act; (4) action in reliance by the other party; and (5) damage as a result of that reliance.
So no affirmative statement = no potential fraud.
These are tough cases even when the defect isn’t a home’s mere history but some tangible damage to the property. The only cases where the subsequent buyers seem to be having success are where the Sellers did some affirmative “hiding” or concealment of a defect…you need Seller’s silence along with concealment.
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Jul 08 2009
Posted: under Litigation.
Tags: Foreclosure
Sounds good and ya keep your attorney fees down. Here’s the explanation from the Circuit Court of Cook County Chancery Division (how ’bout posting the general orders online??)…
Chancery Division Presiding Judge Dorothy Kirie Kinnaird notified judges and attorneys April 1 that all mortgage default calls those first court appearances made by a lender when a borrower has not responded to a foreclosure action would be canceled for July and August.
This has the effect of giving delinquent homeowners more time to find a way to stay in their homes, particularly those involved in the 13,196 mortgage foreclosures filed in the year’s first quarter given the lag time between when a case is filed, a homeowner is served, the response date or if the homeowner does not respond and when a default call would be scheduled. As of last year, about 80 percent of homeowners involved in foreclosure cases did not respond to filings.
Interestingly…
Kinnaird’s decision does not apply to cases where a homeowner has answered or fought a foreclosure or those cases in which a homeowner consents to the foreclosure.
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Apr 24 2009
Posted: under Litigation.
Tags: divorce
Ah the intersection of real estate and family law. Sounds like a 6ish year old case I just finished up…ugh! But actually it’s more than 1 case. For the last year or so family law judges have become part-time real estate brokers and mediators. I heard a judge exclaim recently, “I used to be the biggest real estate broker in Cook County.” Well, no more.
The difficulty in selling real estate has brought some challenging times for the sort of average, middle class divorcing spouses where most of the $$ is in the house. And these situations are often mishandled by attorneys and judges alike. The November ’08 ISBA Newsletter of the Family Law Section Council includes a wonderful piece with loads of questions to ask yourself regarding the disposition of real estate pursuant to a dissolution of marriage.
A summary of the BIG questions to address in a marital settlement agreement:
- Who has possession pending sale/refinance and who’s responsible for expenses during that time?
- Who gets to claim tax deductions?
- Real estate agent selection…always a favorite issue to waste time fighting about.
- If a party can’t refinance, what’s the alternative plan?
Or if the sale/buyout occurs at a later date…
- How will title be held during period of sale/refinance?
- Is the party being bought out getting a set dollar amount or %?
- Who’s responsible for upkeep?
The litigation I’ve dealt with over the last 2-3 years on some of these issues is laughable and sadly the couple cases I’m thinking of included contested judgments where I wasn’t drafting them but rather I got something from a judge.
Simple, get the property listed ASAP or the lawyers must agree on the listing agent. Then, include some price drops that occur every quarter or so. These sorts of cases really shouldn’t be in court once the initial decision gets made.
Here’s to self-executing judgment provisions!
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Mar 19 2009
