RECENT DEVELOPMENTS IN ILLINOIS LAW: WHAT TO KNOW IF YOU ARE SELLING A CONDOMINIUM

Posted April 14, 2023 by Law Office of Andrew Szocka

RECENT DEVELOPMENTS IN ILLINOIS LAW: WHAT TO KNOW IF YOU ARE SELLING A CONDOMINIUM

Condominium properties in Illinois are generally governed by the Illinois Condominium Property Act, 765 ILCS 605/1 et seq (the “Condo Act”). The Condo Act sets standards for what is allowed by both condominium owners, and the associations of which the owners are members. A relative recent case in Illinois provides an important interpretation of the Condo Act. It is known as Harry Channon v. Westward Management, Inc. and is cited as 2022 IL 128040. The Court’s opinion was filed on November 28, 2022 by the Supreme Court of the state of Illinois.

Channon revolves around rules as to the owner of a condominium when he or she sells the unit. Condominium sellers are almost always required to provide certain condominium documents related to the association to the buyer. The documents often include the condominium declaration and bylaws. Naturally, the condominium association charges fees to provide the seller with these documents. It is usually the condominium seller that bears these fees at the real estate closing.

In Channon, the Supreme Court decided whether the Condo Act provides an implied cause of action in favor of a condominium unit seller against the association, the association’s property management company, or even the association’s board of directors, based on allegations that the latter parties charged excessive fees for the production of the required documents. The Court stated that it would construe the Condo Act in order to ascertain and effectuate the legislative intent by applying the plain language contained within the Act.

The Illinois Supreme Court found that the Condo Act does not create an implied private right of action by a condominium unit seller against an agent of the condominium association, or the association’s board of managers, for charging allegedly excessive fees.

In making its decision, the Supreme Court applied its test from Metzger v. DaRosa, 209 Ill.2d 30, 36 (2004). This is a four factor test that determines whether 1) plaintiffs are members of the class that the statute was intended to benefit, 2) the statute was designed to prevent the plaintiffs from suffering the incurred injury, 3) the statute’s purpose is consistent with the creation of a private right of action, and, 4) it is necessary to imply a private right of action to provide an adequate remedy for the statutory violation.

The Illinois Supreme Court’s decision hinged on who the Condo Act was attempting to protect when it defined the documents that condominium sellers had a duty to disclose. The Court decided that the requirements are not a protection for the condominium seller, but for the condominium buyer. As a result, the first element of Metzger test was not met.

The Court also noted that a certain standard must be met to imply a private right of action in a statute, including the Condo Act. The Court would take this step only when it is clearly needed to advance the statute’s purpose and when the statute would be practically ineffective unless a private right of action was implied. In Channon, this “high” bar was not overcome.

As a result, if you are the seller of a condominium, you may be unhappy with the fees that the association charges for you to provide required documents to the buyer. Unfortunately, under current Illinois law, you probably do not have a legal remedy.

Nevertheless, if you need information or assistance in selling a condominium unit, local attorney Andrew Szocka provides thorough and speedy real estate assistance in the Chicagoland area. To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

What is an Interpleader Case

Posted April 7, 2023 by Law Office of Andrew Szocka

What is an Interpleader Case

An interpleader case is not a traditional dispute between people. Rather, an interpleader cases purpose is to determine a persons’ rights to something of value, often a monetary fund, that a plaintiff is holding but does not claim any interest in.

An interpleader action has parties having claims against the plaintiff that arise out of the same or related subject matter when their claims may expose plaintiff to multiple liability. It is the plaintiff that is the interpleader and also referred to as the “stakeholder”. The court’s task is to determine the defendants’ rights as to the specific fund being held by the plaintiff/interpleader/stakeholder, and that is the subject of the interpleader action. Amalgamated Trust & Savings Bank, 121 Ill.App.3d at 1041.

In order to adjudicate defendants’ rights to a fund, the court first considers whether the interpleader action is proper based on the available evidence. If the interpleader action is proper, the court has the plaintiff deposit the funds with the clerk of court, and usually discharges the plaintiff from the action. The defendants then attempt to prove their individual right to the money. Common examples of a specific fund the plaintiff may be holding include an insurance policy or escrow account.

As a result, interpleader actions are a useful tool for a party holding valuable property to which other parties are disputing claims. The interpleader can limit its own involvement, attorney fees, court costs, and unexpected liability.

For additional information on interpleader actions, contact the Law Office of Andrew Szocka, P.C. at (815) 455-8430.

The Illinois Fox River and the Chain O’Lakes (The Chain) Public River Access and Private Land Owner Rights

Posted March 7, 2023 by Law Office of Andrew Szocka

The Illinois Fox River and the Chain O’Lakes (The Chain) Public River Access and Private Land Owner Rights

The Fox River begins in the State of Wisconsin and flows through the State of Illinois to the City of Ottawa where it then flows into the Illinois River. In McHenry County and Lake County, Illinois, the Fox River connects to the Chain O’Lakes. The Chain O’Lakes consists of ten main lakes known as Grass Lake, Lake Marie, Channel Lake, Lake Catherine, Bluff Lake, Petite Lake, Fox Lake, Nippersink Lake, Pistakee Lake, and Redhead Lake. There are another five lakes connected by canals and channels. These five lakes are Duck Lake, Long Lake, Spring Lake, Dunns Lake, and Brandenburg Lake.

The State of Illinois pursuant to the Illinois Administrative Code through the Department of Natural Resources publishes a list of waterways. If a waterway is listed that means that it is open to the public and a private land owner who owns land adjoining the waterway does not have any authority to block or restrict any member of the public from using the water once the person is on the water. A private land owner does not have the right to restrict anyone while that person is on the waters of the Fox River and the Chain O’Lakes.

The Illinois Administrative Code makes the entire Fox River and the Chain O’Lakes open to public use, including all of the below listed waters. The Code provides as follows: The following public bodies of water are opened to public use, the entire length and surface area including all lakes, rivers, backwaters, submerged lands, bayous, and sloughs open to the main channel or body of water at normal flows or stages, are open to the public including but not limited to the Fox River (entire Illinois River Basin), Fox Chain O’Lakes (McHenry and Lake Counties), Bluff Lake, Lake Catherine, Channel Lake, Fox Lake, Grass Lake, Lake Marie, Nippersink Lake, Dunns Lake, Pistakee Lake, Lake Jerilyn, Lac Louette, Redhead Lake, Petite Lake, Spring Lake, and all connecting channels. 17 ILL. ADM. CODE Section 3704 APPENDIX A Public Bodies of Water.

Part of the reason for making the Fox River and the Chain O’Lakes open to the public is to promote commerce. Commerce is plentiful on the Fox River and the Chain O’Lakes. The Chain O’Lakes is the home to hundreds of various “On the Water” types of businesses including marinas, boat sales, charter boat captains, fishing tournaments, boat races, resorts, campgrounds, fine dining restaurants, and bars. One of the historical and most famous places is the bar known as Blarney Island. Blarney Island is located in the middle of Grass Lake and is only accessible by boat.

Does the Federal Government have jurisdiction over the Fox River? The answer would be yes because of the inter-state nature of the river. The Fox River flows through two different states. It would be up to the Federal Government whether they would exercise such jurisdiction and the extent of the involvement.

If you have questions regarding lake or river rights, local attorney Andrew Szocka provides thorough and speedy assistance in the Chicagoland area. To schedule a free initial consultation, visit Andrew Szocka, P.C. or call the office at (815) 455-8430.

What are the Steps to Opening a Probate Case?

Posted February 26, 2023 by Law Office of Andrew Szocka

What are the Steps to Opening a Probate Case?

Just suppose your loved one dies without ever having the chance to make a will or trust. Now imagine that this person owns a home, has bank accounts and investments. If you are the surviving spouse and you own everything joint, then, in most cases, everything passes to you. But what happens if you each owned your own accounts and investments, no beneficiary is named and you need to access the account? A probate case may be required with or without a Will.

Meet with an attorney that handles probate estates.

Bring a copy of the death certificate, the original will, if one exists, a list with names, addresses, ages and how related of all beneficiaries/heirs of the deceased, and a copy of the latest bank/investment account statements that you have in your possession. The attorney will also need a copy of the deed to the real estate.

Someone will have to agree to be appointed the Independent Administrator of the estate. In the event that there is a will, the will usually names an executor and requests that a surety bond be waived. If no will exists, the Court will appoint an administrator and will require a surety bond in the amount of 1.5 times the total amount of the estate. The cost of a bond can be quite high.

Once the paperwork has been completed and filed with the Court, the Court enters an order stating the amount of the bond required. The bond is obtained and submitted to the court. Letters of Office will be issued naming an Independent Administrator.

A Claim Notice published in the newspaper once a week for 3 weeks is required as a notification that a probate estate has been opened. This allows a claim for repayment of a debt to be filed against the estate within a six-month period of the publication.

Once Letters of Office are issued, the Independent Administrator may then sell the real estate and handle any bank account or investment accounts that are open in the deceased’s name.

The Independent Administrator is required to keep an accounting of all the transactions of the estate, all receipts and all distributions. At the end of one year, an accounting of these transactions must be filed with the Court.

If no claims are filed and administration goes smoothly, the probate matter can be closed at the end of one year and the Independent Administrator may be discharged.

If you are thinking about a Probate Matter, local attorney Andrew Szocka provides thorough and speedy Probate assistance in the Chicagoland area. To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Illinois Special Needs Trusts

Posted February 17, 2023 by Law Office of Andrew Szocka

Illinois Special Needs Trusts

An Illinois Special Needs Trust is a legal tool that allows families or caregivers to set aside funds for a person with special needs, without affecting their eligibility for government benefits such as Medicaid, SSI, or other means-tested programs.

In Illinois, a special needs trust is also known as a “supplemental needs trust.” There are two main types of supplemental needs trusts: a first-party supplemental needs trust and a third-party supplemental needs trust.

A first-party supplemental needs trust is funded with the assets of the person with special needs, such as an inheritance, settlement, or a personal injury award. This type of trust must be established before the beneficiary turns 65 years old and is subject to certain restrictions. Also known as a “self-settled” or “payback” trust, a first-party supplemental needs trust, is a type of trust that allows an individual with a disability to retain their eligibility for government benefits, while also setting aside their own assets to supplement their needs.

This type of trust is typically established by the individual with a disability, using their own funds, in order to provide for their own needs while still maintaining eligibility for government benefits such as Medicaid and Supplemental Security Income (SSI). The term “supplemental needs” refers to the fact that the trust is designed to supplement, not replace, government benefits.

One of the key features of a first-party supplemental needs trust is that it must contain a “payback” provision, meaning that upon the death of the beneficiary, any remaining funds in the trust must be used to reimburse the government for the cost of benefits received by the beneficiary during their lifetime. This requirement is intended to ensure that the government is not left with the cost of providing benefits that could have been paid for by the trust.

A third-party supplemental needs trust, on the other hand, is funded with assets that belong to someone other than the person with special needs, such as a parent, grandparent, or other family member. There are fewer restrictions on this type of trust, and it can be established at any time.

A third-party supplemental trust allows someone to provide additional financial support to a loved one who has a disability, without interfering with their eligibility for government benefits. This type of trust is often used by families or loved ones of individuals with disabilities to supplement government benefits, such as Medicaid or Supplemental Security Income (SSI).

The term “third-party” refers to the fact that the trust is funded by someone other than the beneficiary. The trust is typically established by a family member or friend of the beneficiary, and the funds in the trust are used to supplement the beneficiary’s income or provide for their care and support.

One of the key benefits of a third-party supplemental trust is that it can provide a safety net for the beneficiary in the event that government benefits are reduced or discontinued. The trust can also help to ensure that the beneficiary has access to funds for expenses that are not covered by government benefits, such as dental or vision care.

Overall, a third-party supplemental trust can be a valuable tool for families or loved ones who want to provide financial support to an individual with a disability without jeopardizing their eligibility for government benefits.

The purpose of a special needs trust is to provide financial support for the person with special needs while also preserving their eligibility for government benefits. The trust is managed by a trustee, who is responsible for distributing funds to the beneficiary in a way that does not interfere with their eligibility for benefits. It is important to consult with a qualified attorney who specializes in special needs trusts in Illinois to determine which type of trust is appropriate for your situation and to ensure that the trust is properly established and managed.

If you are thinking about a Special Needs Trust, local attorney Andrew Szocka provides thorough and speedy real-estate assistance in the Chicagoland area. To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

Author: Law Office of Andrew Szocka