Whether buyer knows it or not, landmark designation not insurable home title encumbrance, court says

By Dan Churney | Dec 21, 2015

The First District Illinois Appellate Court in Chicago slammed the door on a South Side homeowner’s claim, which blamed prior owners for not disclosing that the 99-year-old house’s title is burdened by landmark designation and demanded her title insurer compensate her for the oversight.

The appellate court’s decision was rendered Dec. 14.

In May 2012, Sanaa Hachem bought a 1916-built home in the 10300 block of S. Seeley Ave., in the Beverly neighborhood. After the purchase, Hachem claimed she learned from a records check at the Cook County Recorder of Deeds' office that the house was in the Longwood Drive Historical District. Specifically, she saw that a 1982 ordinance designated her house a landmark, according to court documents.

A 2013 story in Chicago Magazine reported Hachem and her partner, David McClain, paid $475,000 for the house, then discovered the structure was full of mold and riddled with other defects, prompting them to request a city demolition permit. However, the house's landmark status stood in the way of such a permit.

Court papers show Hachem put in a claim with Chicago Title Insurance Company, saying the landmark ordinance was an encumbrance on the property. The company denied the claim. In June 2013, Hachem and Chicago Title Land Trust Company sued Chicago Title Insurance Company and its agent, Christopher Wienum, who issued the title policy, as well as the couple – identified in court documents as Steven and Cheryl Wolfe - who sold Hachem the home.

Hachem alleged she should have been told, but was not, that the property she was buying was encumbered by the ordinance.

Defendants brought motions to dismiss, which Cook County Judge Margaret Brennan granted. Hachem had made motions to amend her complaint and pleading, as well as a motion asking Brennan to reconsider her decision to dismiss, but all were rejected.

Hachem then took her case to First District Appellate Court, but found no more success there.

Appellate Justice Sheldon Harris, backed by Justices Laura Liu and Maureen Connors, affirmed Judge Brennan's reading of the case.

Harris pointed out the contract between Hachem and the Wolfes did not require the Wolfes to tell Hachem of the house’s historical designation. Further, in signing the contract, Hachem agreed to buy the property subject to “restrictions of record” – such a restriction would include an ordinance designating the house a landmark.

Harris went on to say Hachem had “constructive notice” of the restriction, in that the restriction was a matter of public record at the recorder of deeds’ office and Hachem could have inspected that record before, rather than after, closing the sale.

“It is the duty of a purchaser of land to examine the record,” Harris wrote. “The landmark designation was recorded in January 1982 and the law imposes that knowledge on plaintiffs.”

Hachem had contended the Wolfes were obliged by the ordinance to post a plaque identifying the property as a landmark, but did not do so. Justice Harris made short work of this argument by noting the ordinance places that responsibility on the Commission on Chicago Historical and Architectural Landmarks, not the owner.

Hachem also sought appellate relief on procedural grounds, saying her motions to amend her complaint and for Brennan to reconsider her decision to dismiss the case, should not have been denied.

Justice Harris discounted Hachem’s arguments for a couple of reasons, noting Hachem did not provide the appellate court with a transcript of the hearing when Hachem made an oral motion, leaving the appellate court without a sufficient record on which to base a decision.

In regard to Hachem’s motion to amend, Harris pointed out Hachem made the motion after the case was dismissed – a point at which Hachem no longer had a right to amend.

The parties are all represented by Chicago lawyers: Thomas Herz Jr., for Hachem and Chicago Title Land Trust Company; Arnstein & Lehr, for Chicago Title Insurance Company and Weinum; and Kathleen O'Dekirk, for the Wolfes.

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Arnstein and Lehr LLP Cook County Recorder Kathleen O'DeKirk, Esq. Thomas Herz Law Office

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