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Giddan & Sons v. Northbrook Tr. & Sav.

OPINION FILED NOVEMBER 12, 1986.

JOSEPH GIDDAN & SONS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

NORTHBROOK TRUST & SAVINGS BANK, AS TRUSTEE, ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. James C. Murray, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 30, 1986.

The essential facts of this real estate action are not in dispute. Defendants, Northbrook Trust and Savings Bank, as trustee under trust number 471, and Arthur S. Johnson, Elsie N. Johnson, Phillip A. Johnson, and Carol Ann Piggott, as beneficiaries of that trust, are the legal and beneficial owners of two adjacent parcels of real estate located at the southeast corner of the intersection of Lake-Cook Road and Waukegan Road in the village of Deerfield, Cook County. The parcels were designated parcel A and parcel B on the plat of Phil Johnson's subdivision. Parcel A is divided into subparcels: the "Restaurant portion" and the "Remainder of Parcel A." Plaintiff is a partnership engaged in the business of real estate development. On January 11, 1977, plaintiff and defendants signed an option agreement giving plaintiff the option to purchase parcel B and the remainder of parcel A for a stated consideration. In this option, the parties agreed that "Parcel A is presently zoned as a Business District while Parcel B is presently zoned as a One-Family District. The Undersigned hereby undertake to obtain rezoning of Parcel B to Business District." The option period commenced upon its signing and "expired on the later to occur of (1) the expiration of six (6) months after final action (whether favorable or unfavorable) by the Board of Trustees of the Village of Deerfield with respect to such zoning petition and (2) January 1, 1978." The agreement also provided for extensions of the option period. It is not questioned that the actions taken pursuant to this agreement were taken within the option period as extended.

According to the agreement, plaintiff's option to purchase was "on the terms and conditions set forth in the real estate sales contract attached." In the attached contract, defendant Northbrook Trust and Savings Bank, as trustee, agreed to convey the subject property to plaintiff "by recordable trustees deed." The trial court found that on September 3, 1982, plaintiff exercised its option by paying defendants $10,000. The provisions of the option agreement named the parties; described the subject matter real estate; and fixed the purchase price, the time for payment, and the manner of conveyance. Had nothing more been said in the agreement when the option was exercised, a valid contract for sale of the real estate undoubtedly would have emerged, requiring defendants to convey title to the subject premises "by recordable trustees deed."

• 1 The same words, "recordable trustees deed," were used in the real estate contract involved in Maros v. Jones (1972), 6 Ill. App.3d 950, 951, 286 N.E.2d 819. Both Maros and this case involve a contract by an owner to subdivide land into two or more parts by conveying a portion of the land to a buyer. Section 1 of "An Act to revise the law in relation to plats" (Plats Act) (Ill. Rev. Stat. 1969, ch. 109, par. 1) provides in relevant part, "whenever the owner of land subdivides it into 2 or more parts * * * he must have it surveyed and a plat thereof made." In Maros this court held that this section required that the subject property be subdivided before good title may be transferred. Section 5a of the Plats Act (Ill. Rev. Stat. 1975, ch. 109, par. 5a) provides that the recorder of deeds "shall not record deeds or leases which attempt to convey property contrary to the provisions of this Act." It is further provided in the Illinois Municipal Code:

"The corporate authorities may provide, by ordinance, that any map, plat, or subdivision of any * * * parcel of land, shall be submitted to the corporate authorities * * * for their * * * approval. In that case no such map, plat, or subdivision shall be entitled to record in the proper county, or have any validity until it has been so approved. * * * Until approved by the corporate authorities, * * * no such map, plat or subdivision plat shall be entitled to record in the proper county, or have any validity whatever." Ill. Rev. Stat. 1975, ch. 24, par. 11-15-1.

Pursuant to and supplementing these Illinois statutes, the village of Deerfield enacted ordinances defining "subdivision" and describing the recording requirements:

"Subdivision — the division of a parcel of real estate not previously subdivided, into two or more lots or parcels as to require the preparation and recording of a plat or subdivision." (Deerfield, Ill., Municipal Code ch. 9, par. 9.101 (1963) (as amended).)

"In the case of all lots of record as defined herein, a division or separation of or from such Lot of Record by conveyance of record shall be deemed a subdivision or resubdivision within the terms of this ordinance and require the preparation and recording of a plat of subdivision or resubdivision as the case may be, in accordance with the terms of this Section." (Deerfield, Ill., Municipal Code ch. 9, par. 102a (1963) (as amended).)

We conclude that sections 1 and 5a of the Plats Act, section 11-15-1 of the Illinois Municipal Code, and chapter 9 of the Deerfield Municipal Code are applicable to the facts of this case. On the basis of this statutory scheme, we hold that defendants as conveyors by recordable deed were required to have the land surveyed, to have a plat made, and to have the plat approved by the corporate authority before the deed was recordable. By agreeing to deliver a "recordable deed," defendants obligated themselves to comply with the lawful conditions imposed by the village of Deerfield upon the subdivision.

On October 25, 1982, defendant Northbrook Trust and Savings Bank, on behalf of sellers and plaintiff, filed with the village of Deerfield a petition for subdivision together with a preliminary plat of subdivision. The board of trustees of the village voted to grant the petition subject to six requirements, only two of which are relevant here:

"1. No additional new curb cuts be permitted on Lake-Cook Road. Access to Lot 2 * * * must be through the existing Phil Johnson Restaurant entrance.

2. Appropriate easements be established across the restaurant lot so that the Lake-Cook and Waukegan Road entrances can be used."

Defendants' refusal to establish such easements and deliver a recordable deed to plaintiff led to this litigation. Defendants contend: "The Village's requirement that the parties establish appropriate easements across the restaurant site directly contradicted plaintiff's express representation to the Johnsons that no restrictions or limitations would be placed on the restaurant site as a result of the subdivision. Furthermore, although the parties had previously negotiated the location of cross easements, they had been unable to reach an ...


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