Riparian Rights – Who Owns the Water?

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Assume you own a parcel of land that abuts a pond or river. Do you also have rights to the water?  Similarly, assume you and a neighbor own separate parcels of land that abut the same pond or river. What rights do each of you have to that body of water?

Riparian rights refer to the rights of a landowner to use bodies of water — such as ponds, lakes, streams, or rivers — that border the land.  These rights exist by operation of law and have been embodied in Illinois law for over a century. If two separately-owned properties abut the same body of water, both land owners have equal rights, and neither owner may exercise their rights in a manner that prevents the other from utilizing the body of water.

But what ownership rights do the owners have if the body of water abutting two properties is a river? The Third District Appellate Court answered this question in Adam Holm et al. v. Peter Kodat et al.  In Holm, the plaintiffs and defendants each owned property that abutted the Mazon River in Grundy County, Illinois.  The plaintiffs used kayaks on portions of the river that abutted their property, but wanted to kayak along the entire Mazon River.  The defendants objected to plaintiffs’ use of kayaks on the portion of the Mazon River that abutted their property.  The trial court found in favor of the defendants.

The Third District Appellate Court agreed, adopting the trial court’s reasoning that regardless of the fact that kayaks could be used on the Mazon River, it was a non-navigable body of water, and as such, each property owner owned up to the center of the river abutting their respective properties.  Accordingly, the defendant landowners could lawfully bar any and all trespassers (including their neighbors) from the segment of the Mazon River that abuts their property.  Thus, the court held that the defendants could bar plaintiffs from using their kayaks on the portions of the Mazon River abutting the defendants’ property. Correspondingly, under Holm, the plaintiffs have the right to bar defendants’ use of the Mazon River abutting plaintiffs’ property.

When it comes to land use, especially in situations involving riparian rights and easements, it is important to know what your rights are.  For more information regarding these or similar issues, please contact Roenan Patt at rpatt@lgattorneys.com or (312) 368-0100.

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Buyers of New Construction Beware: The Breach of Implied Warranty of Habitability in Illinois Further Erodes

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Historically, the purchaser of a newly constructed home took the property at his or her own risk if they failed to discover a hidden or latent defect in the home’s design or construction prior to the closing of the sale. It used to be that after the sale closed an aggrieved buyer of new construction would not be able to pursue claims against the developer who performed the shoddy work. In 1979, the Illinois Supreme Court recognized the harshness of the doctrine of caveat emptor and out of the ashes of disappointed expectations rose the doctrine of breach of the implied warranty of habitability – a legal theory that protects a purchaser’s legitimate expectation that the home will be reasonably suited for its intended use. Quite recently, an Illinois Appellate Court took steps to further erode the already fading implied warranty of habitability when the buyer, who usually purchases the new construction from a developer, tries to sue the company that performed the shoddy work – the contractor – directly.

In 1400 Museum Park Condominium Association v. Kenny Construction Company, et al, an Illinois Appellate Court held that a buyer of new construction may not pursue a claim for breach of the implied warranty of habitability against the general contractor responsible for the shoddy construction. The court’s reasoning was based in part on the Illinois Supreme Court’s recent decision in Sienna Court Condominium Association v. Champion Aluminum Corporation, 2018 IL 122022 holding that a purchaser of a newly constructed condominium cannot pursue a claim for breach of the implied warranty of habitability against a subcontractor where the subcontractor had no contractual relationship with the purchaser. Because the implied warranty of habitability is a creature of contract law, the Supreme Court reasoned that in order for an implied warranty to exist, the buyer must have a contractual relationship with the subject of his or her ire – the subcontractor. Because there was no contractual privity between the buyer and the subcontractor, the Illinois Supreme Court held that regardless of the nature of the defect, no cause of action existed between the purchaser and the subcontractor.  While the unit owners and condo association in 1400 Museum Park Condominium Association could have pursued a direct action against the developer with whom they had a contract, as is often the case, once the developer sold all of the units, the developer had no assets and was insolvent and suing the developer would have been pointless. The purchasers, therefore, were left to sue the general contractor directly. Although the general contractor obviously had a contract with the now-defunct developer, that relationship was insufficient to permit the condo purchasers, with whom no contractual relationship existed, to directly sue the contractor that actually performed the work for breach of the implied warranty of habitability.

Construction law in Illinois is constantly evolving.  While general contractors and sub-contractors welcome these recent court decisions, for owners, the pendulum may be slowly swinging back to the days of caveat emptor. For more information regarding regarding these, or similar issues, please contact Howard L. Teplinsky at hteplinsky@lgattorneys.com or (312) 368-0100.

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Champlain Towers South: A tragic case study in the pitfalls of condominium association management

Owning a condominium may seem like an easy alternative to home ownership. Maintenance costs are spread among the condominium associations’ units, a board manages the condominium association’s affairs for the other association members, and a property management company might even handle the association’s day-to-day issues. After all, board members are generally volunteers who have other, full-time occupations.

But the June 24, 2021 collapse of the Champlain Towers South condominium building in Surfside, Florida should be a gut-check to every condominium owner nationwide. A condominium association does not run itself.

Immediately following the tragedy, conflicting stories arose—stories that are familiar to any experienced condominium owner. In September 2019, facing substantial special assessments and unhappy unit owners, five of the seven condominium board members resigned. One board member cited a pattern of “ego battles, undermining the roles of follow board members, circulation of gossip and mistruths.” The association reportedly had less than $800,000.00 in reserves, but needed to fund more than $15,000,000.00 in repairs. The board had asked condominium unit owners to pay special assessments ranging from $80,000.00 to $200,000.00, but reports show that many condominium unit owners balked at the repair project’s scope and cost.

Condominium board members must understand their duty to act in every association member’s best interests. And condominium association members can only hold board members accountable if the members actively engage in their association, which starts with attending every quarterly meeting. There, the board should make clear what actions they have taken over the past months, and present the issues that the association expects to face in the future. Association members should also understand a building’s history. The Illinois Condominium Property Act requires condo boards to maintain the association’s records, such as by-laws, meeting minutes, and receipts for all expenditures. And every association member must know they have the right to review those records.

Associations must also lean on their professionals. For instance, a board can spend hundreds of thousands of dollars trying to address water leaks before realizing they should have hired an engineer to comprehensively examine the root of the problem. And boards who try to deal with “problem unit owners” without understanding the rules binding the association can easily mire the association in lawsuits and a toxic living environment.

There is no doubt that the Champlain Towers South condominium association faced unique challenges leading to one of the deadliest building collapses in American history, but most condominium associations face one or more similar challenges at any given time.

If you are a condominium unit owner, board member, or property manager who needs assistance navigating these issues, feel free to contact M. Reas Bowman at rbowman@lgattorneys.com or (312) 368-0100.

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