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Krueger v. Oberto

December 29, 1999

WILLIAM KRUEGER AND AUDREY KRUEGER; TERRENCE J. BRADY AND DEBRA R. BRADY; PATRICK LUBENOW AND PAULA LUBENOW; MICHAEL MCNAMARA AND BETH MCNAMARA; RUTH PREST; JERRY QUIST AND DANIELLE QUIST; KATHLEEN OSMOND AND WALTER OSMOND, JR., KEVIN GHERLONE AND KIMBERLY GHERLONE; CLIFTON STEWART; ROBERTA BERNARD; SUSAN MACCAULEY; PAT BELL AND GEORGE R. BELL, JR.; AND ROBERT W. AND MILDRED J. VEHLOW, PLAINTIFFS AND COUNTER- DEFENDANTS-APPELLEES,
v.
EDWIN L. OBERTO AND ANNETTE B. OBERTO, MICHAEL WERCHEK, AND WERCHEK BUILDERS, LTD.,
DEFENDANTS AND COUNTER- PLAINTIFFS-APPELLANTS.



Appeal from the Circuit Court of Lake County. No. 98--CH--207 Honorable Melvin E. Dunn, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

The defendants, Edwin L. and Annette B. Oberto and Michael Werchek and Werchek Builders, Ltd., appeal the trial court's ruling in a preliminary and permanent injunction action enjoining the defendants from subdividing a parcel of property into three lots and building single-family residences on each lot. We reverse.

The following facts are taken from the pleadings and attached documents. In the 1950s, Francis C. and Adelaide Paradise (the Paradises) subdivided a parcel of land in Libertyville, Illinois, and created a subdivision named Paradise Park Estates (Paradise Park). The plat of subdivision was recorded in the Lake County recorder of deeds office on April 20, 1957. The plat shows restrictions pertaining to easements and building line setbacks. The plat also shows 34 lots. All of the lots are approximately one-half an acre each except for lot 34, which is approximately three acres (six times as large as the other lots). The plat shows that lot 34 does not have access to the two subdivision roads.

Subsequently, the Paradises transferred their interests in Paradise Park to a land trustee; this transfer was recorded on April 20, 1957. The land trustee then transferred lots 24 and 34 by a trustee deed back to the Paradises; this transfer was recorded on June 8, 1957.

The land trustee then conveyed other lots of Paradise Park containing restrictive covenants. The deeds were recorded as follows: lot 4, conveyed back to the Paradises, recorded on September 17, 1957, showing no protective covenants; lot 4, conveyed to a third party, containing the protective covenants at issue, recorded on October 10, 1957; lots 15, 16, and 17, recorded on November 20, 1957, containing protective covenants; and lots 2, 5, 6, 12, 14, 21, 25, 26, and 27, recorded on December 30, 1958, also containing protective covenants. All of the deeds noted above, except for the conveyance of lot 4 from the trustee to the Paradises, included the following restriction:

"PROTECTIVE COVENANTS

The following covenants and restrictions shall run with the land and be binding on all lot owners in this subdivision and all persons claiming under them *** :

1. All lots in this subdivision shall be used exclusively for residential purposes.

1. All residences constructed in this subdivision shall include a two-car attached garage.

1. No more than one structure may be erected on any lot in this subdivision.

***

1. These covenants may be enforced by any or all of the lot owners by proceedings at law or in equity against violators either to restrain violations or for damages."

Subsequently, defendants Edwin L. and Annette B. Oberto (the Obertos) acquired lot 34 from the Paradises by a warranty deed, recorded in the Lake County recorder of deeds grantor-grantee index on July 17, 1959. The title report issued to the Obertos from Chicago Title Insurance Company showed no protective covenants encumbering lot 34. The deed stated that the Obertos' interest was subject only to the subdivision and utility easements of record. Sometime before March 1988, the Obertos entered into a contract to sell lot 34 to defendants Michael Werchek and Werchek Builders (Werchek), who proposed to subdivide lot 34 into three lots and build single-family residences on each of the lots. On March 2, 1998, the plaintiffs, William and Audrey Krueger, Terrence J. and Debra R. Brady, Patrick and Paula Lubenow, Michael and Beth McNamara, Ruth Prest, Jerry and Danielle Quist, Kathleen and Walter Osmond, Jr., Kevin and Kimberly Gherlone, Clifton Stewart, Roberta Bernard, Susan MacCauley, Pat and George R. Bell, Jr., and Robert W. and Mildred J. Vehlow, filed a two-count complaint seeking preliminary and permanent injunctions. Count I alleged that the protective covenants listed above applied to lot 34 and sought a preliminary and permanent injunction to order the defendants to comply with the protective covenants allowing only one single-family structure on lot 34 and prohibiting the resubdivision of lot 34 and construction of a road. Count I also sought a declaration that the building of more than one single-family structure on lot 34 was prohibited by the plat of subdivision and the protective covenants. Count II alleged violations of the Illinois Municipal Code (65 ILCS 5/11--13--15) (West 1998)).

On April 2, 1998, the Obertos filed an answer to the plaintiffs' complaint, raising as an affirmative defense that the action was barred by the 40-year statute of limitations set forth in section 13--118 of the Code of Civil Procedure (Code) (735 ILCS 5/13--118 (West 1998)). The Obertos also filed a counterclaim, alleging that the protective covenants were not in their chain of title and seeking a declaration that the protective covenants did not encumber lot 34. Subsequently, the Obertos amended their counterclaim to allege that they did not have either actual or constructive notice of the protective covenants when they bought lot 34.

On March 26, 1998, Werchek filed a motion to dismiss the plaintiffs' complaint pursuant to sections 2--615 and 2--619 of the Code. 735 ILCS 5/2--616, 2--619 (West 1998). Werchek asserted that the protective covenants did not apply to lot 34, the plaintiffs waived any right to enforce the protective covenants because the plaintiffs had violated them, there was no general plan for Paradise Park, the protective covenants did not prohibit the proposed development, and the action was barred by the 40-year statute of limitations (735 ILCS 5/13-- 118) (West 1998)). In support of its motion, Werchek attached, inter alia, copies of the land trustee's deed conveying lots 24 and 34 to the Paradises and the deed conveying lot 34 to the Obertos. Regarding count II of the plaintiffs' complaint alleging violations of the Municipal Code, Werchek attached an affidavit of defendant ...


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