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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 33544
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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I live in a subdivision that has formed a voluntary home owner

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I live in a subdivision that has formed a voluntary home owner association-they hold meetings and like to dictate things, however, they have no real powers, as they have never recorded any declarations-and no association has ever existed on titles or plats. One owner decided he wanted to purchase a lot designated for access to the water-so he took the "voluntary association" to court, the association, neglected to tell the judge that they really have no authority over the lot. Judge states, if all parties agree to sell it he will issue a judicial deed for the lot. The 5 neighbors who are friends with the guy who wants the lot-hold a meeting and vote to sell it-never asking any of the owners their desires-go back and tell the judge they have to authority, and all parties agreed to sell-They got a deed-we just found out about this..we lost our beach lot, and the voluntary association poketed $7,000!!! If the judge knew they were not a real recorded association, nor did these people ever go around the neighborhood and ask if the owners wanted to sell-wouldnt he have a different opinion? So, now outside of the owners spending thousands in attorney fees to get it back..is there anything else they can do to inform this judge he was lied to? We had a piece of our properties stolen from us??
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  socrateaser replied 1 year ago.
Hello,

Who was the deeded owner of the lot, before the judge ordered it transferred to the voluntary association?

Are you a member of the voluntary association?

Thanks in advance.
Customer: replied 1 year ago.
The owner of the lot is the maker of the plat from 1921-when the subdivision was platted two lots were left empty for access to get to the water-this was one of them-no one has ever owned it since the maker of the subdivision, technically it is an easment. The judge did not transfer it to the association, he deeded it to the homeowner that wanted to purchase it, by virtue of v-association stating they had approval from the subdivision to whom it belongs to sell it-Which they did not-they never asked anyone if they wanted to relinquish it-The ot allows them access to the water for fishing, swimming etc...not to mention value to there properties-NO I AM NOT A MEMBER
Expert:  socrateaser replied 1 year ago.
Okay, thanks for the added info.

In Stahelin v. Forest Preserve Dist. of Du Page County, 376 Ill.App.3d 765, 877 N.E.2d 1121 (IL 2nd App. 10/10/2007), the Illinois 2nd District Court of Appeals writes:

  • An action to quiet title in property is an equitable proceeding in which a party seeks to remove a cloud on his title to the property. Illinois District of American Turners, Inc. v. Rieger,329 Ill.App.3d 1063, 1071, 264 Ill.Dec. 338, 770 N.E.2d 232 (2002). To constitute a cloud, there must be a semblance of title that is, in fact, unfounded and casts a doubt upon the validity of the record title. Rieger, 329 Ill.App.3d at 1072, 264 Ill.Dec. 338, 770 N.E.2d 232. "[A] quiet title action does not lie where the defendant has not made an adverse claim to an interest in the plaintiff's property." Rieger, 329 Ill. App.3d at 1072, 264 Ill.Dec. 338, 770 N.E.2d 232.


In plain English, unless the voluntary association's complaint/petition filed with the court that: (1) claimed that the association had a right to the land; (2) cast doubt upon the validity of the recorded title; and (3) claimed that the named defendant or defendant's had made an adverse claim to an interest in the association; then the judgment of the court is void for lack of subject matter jurisdiction.

Judgment entered by court that lacked subject matter jurisdiction is void and may be attacked at any time and in any proceeding. See, In re Marriage of Chrobak, 349 Ill.App.3d 894, 811 N.E.2d 1248 (IL 2nd. App. 6/24/2004).

So, you can bring a motion to set aside judgment for lack of subject matter jurisdiction, assuming that you can show that at least one of the three enumerated elements which I have described above is not present in the association's complaint. The fact that the association is a voluntary organization would be evidence suggesting that it had no right to the land at the time that the complaint was made.

I haven't read the association's complaint, any answer by a defendant, or the facts in the court record. So, I can't consider what the court may have already ruled upon or why. But what I've described here is the substantive law under which the court would be required to set aside its judgment, assuming that the facts align with the law.

For a real property lawyer referral, see this link.

Please let me know if I can be of further assistance.
Customer: replied 1 year ago.
Thank you-The palntiff's tried to obtain the lot thru adverse possesion first, and were denied by court-and told if they could come back with proof that all the owners entitled to the use of this lot agree to sell a judiicial deed would be issued-the association took that as to if they held a meeting and all agreed that was sufficient-not once did they ask or get anything in writing stating it was the wishes of the home owners-they were only told of the outcome-The judicial deed itelf states they (association) claim they have full authority to settle this claim.....only by means of they think so since they were served-never did they mention to the court they really are not a legal recorded association, and have no authority over the lots what so ever.
Expert:  socrateaser replied 1 year ago.
Thanks for the added info.

The procedure is still the same. If there is proof that the voluntary association never had any legal claim to the property, then the court had no subject matter jurisdiction to quiet title in favor of the association. If you can show that the association committed a fraud in its pleadings, and that fraud demonstrates a lack of subject matter jurisdiction, then the court is required to consider the evidence consistent with the question of subject matter jurisdiction (or, for a set aside of the judgment directly due to fraud).

The issue that I am concerned about here is whether or not you had notice of this legal action, either by being served with a copy of the summons and complaint, or by publication in a newspaper of general circulation in your community. Because, if you had such notice, and you did not come forward and challenge the association's authority, then the court could hold that you waived the right to complain directly about the association's fraud. Though, you cannot waive your right to complain based upon a lack of subject matter jurisdiction -- so, if the fraud deprives the court of subject matter jurisdiction, then it won't matter whether or not you had notice of the proceedings.

Judges don't like to overrule themselves. The court will look for ways to avoid admitting that it made a mistake. Your pleadings must show how the court was deceived. The judge may want to know why you did not come forward sooner. You don't need to explain this to me, but you will have to be able to explain it to the court, because the judge may try to make you the bad actor, so as to maintain the judgment. This would mean that you would have to appeal the judgment to the District Court of Appeals, and that could be a very costly exercise.

In my opinion, you will not succeed in this matter without hiring legal representation. And, you will need other homeowners to sign onto your motion (which, could reduce the cost of representation, if those persons are willing to pay their fair share of the costs).

One thing is for certain: if you don't try to have the judgment set aside, then because the judgment is the law of the case, the matter is decided and you will have lost your use of the land forever. So, contact a local real property or general civil attorney and see if you can get the judgment set aside.

Hope this helps.
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 33544
Experience: Attorney and Real Estate broker -- Retired (mostly)
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