Daily Development for
Tuesday, May 9, 2000
By: Patrick A. Randolph,
Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu
WORDS AND PHRASES;
"IMPROVEMENTS:" City's construction and installation of a subway
system under property does not constitute an "improvement" to
property and consequently a resulting trespass claim would be subject to the
general oneyear statute of limitations, rather than the four year statute
applicable to claims based upon "improvements."
Bank of Ravenswood v. City
of Chicago, 717 N.E.2d 478 (Ill. App. 1 Dist. 1999).
Plaintiff purchased
property from a corporation that had engaged in negotiations with the City of
Chicago through which the corporation would grant the city a permanent easement
to "construct, reconstruct, repair and maintain" a subway tunnel
underlying the property. The City and the corporaation had entered into a
"right of entry" agreement under the assumption that a permanent
easement agreement would later be entered into.
The plaintiff purchased
the property from the corporation and closed on the property prior to the
granting of the permanent easement. The City continued the work without ever
obtaining a final easement agreement. Plaintiff contended that the City's
actual construction of the subway tunnels without completing the negotiations
on the easement constituted a trespass. Although, through a limited settlement,
plaintiff granted the city a permanent easement to operate trains in the tunnel
and the City commenced operation the trains, the plaintiff sought damages for
the prior invasion in the construction of the tunnel itself.
Plaintiff brought a trespass claim arguing that the construction
of the tunnel constituted an "improvement" and, as such, a fouryear
statue of limitations should apply. Here is the statute: "As
used in this Section 'person' means any individual, any business
or legal entity, or any body politic.(a) Actions based upon
tort, contract or otherwise against any person for an act or omission
of such person in the design, planning, supervision, observation or management
of construction, or construction of an improvement to real property shall be
commenced within 4 years from the time the person bringing an action,
or his or her privity, knew or should reasonably have known of such
act or omission."
The City filed a motion
for judgment on the pleadings arguing that the trespass action was timebarred
because the original owner had committed to granting the permanent easement.
There was a great deal of hocus pocus in the management of the lawsuit at the
trial court level, but ultimately the case reached the appeals court on the
issue of whether the ordinary one year statute of limitations for actions
against cities ought to apply or whether the four year statute for trespass involving
the construction of an "improvement" ought to apply.
The court (21) held that
the subway was not an "improvement" because it was not an integral
part of the function of the residential town homes on the surface that enhanced
the overall value of the property. "Unlike a sewer system or construction
work on a traffic intersection, [a subway system] does not have any actual
relations to the use or enjoyment of the real property located above it such
that its presence could be considered an improvement." Accordingly, the
suit was timebarred as it was not brought within the requisite oneyear period.
Comment 1: Huh? Is the
court reading the same statute that we are? Isn't the purpose to extend the
statute of limitations on permanent construction work to real property because
it takes time to evaluate the question of impact and, therefore, injury, from
such installations? The question of whether the property value is enhanced by
the work ought to have nothing to do with the interpretation of the statute.
The actions governed by
the statute may well be pursued, as here, by a party claiming that the actions
of the party undertaking the installation actually injured the property. How
can we justifiably limit the application of the statute to work which actually
enhances the value? There is nothing in the statute suggesting such an
interpretation, and were the defendant any party other than the City of Chicago
building a subway, it is hard to imagine that such an interpretation would be upheld.
Comment 2: The injured
party claimed that this was a continuing trespass, but the court denied that
claim (properly) because this is a permanent physical installation. (One might
even say an "improvement.")
Comment 3: In short, the
editor regretfully concludes, this rip interpretation is another one of the
embarrassing politically oriented decisions that Chicago was once famous for,
but that most had believed or hoped the appellate courts, at least, had put
behind them. All we can hope for is the appeal.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
Items in the Daily Development section generally are extracted from the
Quarterly Report on Developments in Real Estate Law, published by the ABA
Section on Real Property, Probate & Trust Law. Subscriptions to the
Quarterly Report are available to Section members only. The cost is nominal.
For the last six years, these Reports have been collated, updated, indexed and
bound into an Annual Survey of Developments in Real Estate Law, volumes 1‑6,
published by the ABA Press. The Annual Survey volumes are available for sale to
the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312)
988 5590 or mtabor@staff.abanet.org
Items reported here and in the ABA publications are for general information
purposes only and should not be relied upon in the course of representation or
in the forming of decisions in legal matters. The same is true of all
commentary provided by contributors to the DIRT list. Accuracy of data and
opinions expressed are the sole responsibility of the DIRT editor and are in no
sense the publication of the ABA.
Parties posting messages to DIRT are posting to a source that is readily
accessible by members of the general public, and should take that fact into
account in evaluating confidentiality issues.
ABOUT DIRT:
DIRT is an Internet discussion group for serious real estate professionals.
Message volume varies, but commonly runs 5 ‑ 10 messages per workday.
Daily Developments are posted every workday.
To subscribe to Dirt, send an e-mail to:
|
To: |
ListServ@listserv.umkc.edu |
|
Subject: |
[Does not matter] |
|
Text in body of message |
Subscribe Dirt [your name] |
To cancel your subscription to Dirt, send an e-mail to:
|
To: |
ListServ@listserv.umkc.edu |
|
Subject: |
[Does not matter] |
|
Text in body of message |
Signoff Dirt |
For information on other commands, send the message Help to the listserv
address.
DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters. Because real estate brokers generally find
this service more valuable, it is named “Brokerdirt.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to Brokerdirt, it is not necessary also to subscribe to DIRT, as
Brokerdirt carries all DIRT traffic in addition to the residential discussions.
To subscribe to Brokerdirt, send an e-mail to:
|
To: |
ListServ@listserv.umkc.edu |
|
Subject: |
[Does not matter] |
|
Text in body of message |
Subscribe Brokerdirt [your name] |
To cancel your subscription to Brokerdirt, send an e-mail to:
|
To: |
ListServ@listserv.umkc.edu |
|
Subject: |
[Does not matter] |
|
Text in body of message |
Signoff Brokerdirt |
DIRT is a service of the American Bar Association Section on Real Property,
Probate & Trust Law and the University of Missouri, Kansas City, School of
Law. Daily Developments are copyrighted by Patrick A. Randolph, Jr., Professor
of Law, UMKC School of Law, but Professor Randolph grants permission for
copying or distribution of Daily Developments for educational purposes,
including professional continuing education, provided that no charge is imposed
for such distribution and that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at: http://www.umkc.edu/dirt/