Chicago Business Litigation Lawyer Blog
Two property owners got into a dispute regarding a roof that encroached onto a neighboring property. The roof was constructed after the prior owners of both properties agreed and entered into a revokable license. The trial court found that the roof was an encroachment and granted summary judgment for the plaintiffs. The appellate panel disagreed, finding that the encroachment was unintentional, and the cost of replacing the roof was great while the benefit to the plaintiff of having the roof replaced was minimal. Therefore the panel determined that the trial court abused its discretion in finding for the plaintiff.
JCRE Holdings owns property in Peoria Heights. GLK Land Trust owns the neighboring property. Gary L. Kempf is the trustee of GLK Land Trust. The two properties share a common wall. In 1982, the prior owners of the properties entered into and recorded a “Party Wall Agreement.” The agreement designated the shared wall as a common support wall. In 1996, when two other sets of owners owned the properties, one received permission from the other to construct a sloped roof that hung over a portion of the wall onto the others’ property.
In 2014, JCRE sued GLK alleging that the overhanging roof constituted a trespass. The complaint sought injunctive and other relief. The parties filed cross-motions for summary judgment. The trial court denied both motions. After motions to reconsider, the trial court granted JCRE’s motion, finding that the agreement between the prior property owners constituted a revocable license that JCRE revoked. GLK then appealed.
The appellate panel began by finding that the agreement between the prior owners as a license and not an easement. The panel determined that license terminated in 2001 when GLK purchased its property. The panel stated that, once the license terminated, the roof constituted a trespass to the neighboring property. The panel concluded that the trial court properly found that the roof constituted a trespass to JCRE.
Next, the panel turned to the relief entered by the trial court, a mandatory injunction ordering GLK to remove the roof overhang. Citing Ariola v. Nigro, the panel stated that when a property owner intentionally encroaches on the land of an adjoining owner, injunctive relief compelling the removal of the encroachment is generally appropriate. The panel noted that if an encroachment is unintentional, injunctive relief may be denied. The panel continued, stating that if the cost for removing an encroachment is great, the corresponding benefit to the adjoining landowner is small, and damages can be had at law, courts will ordinarily refuse to grant injunctive relief requiring a party to remove an unintentional encroachment.
The panel then found that the construction of the roof was done only after an agreement was reached between the prior property owners. Therefore, the panel reasoned, the encroachment was not intentional. The panel then stated that GLK’s cost to remove and replace the roof would be great, while JCRE suffered minimal damage from the encroachment. Under these circumstances, the panel reasoned, the trial court abused its discretion in granting injunctive relief to JCRE. The panel thus determined that reversal was appropriate, and it reversed the trial court’s grant of summary judgment to JCRE and remanded the case for further proceedings.
You can read the full opinion here.
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