Category: Property Disputes

Partition -What is it for and how do I get started?

Partition -What is it for and how do I get started?

When people come to share property, they do so with the expectation that they will share it equally and in good faith. Often this can be property purchased by marital couples, business partners, or even good friends who wish to own property and live together. But what happens if the people sharing this property can no longer get along and don’t want to share property together anymore? This is where partition is used.

Partition comes into play most often with shared real estate. Often times people will purchase a home together and put both their names on the title. When a relationship breaks down for whatever reason, it can often become a debate about who will be leaving the property and who will be keeping it. Understandably, when both parties have their name on the title, it can be a difficult question to answer as to who gets ownership of the property.  A complaint for partition is where a party comes before the Court and explains that jointly held real estate is in dispute and parties need the Court to rule on who will take ownership.

Upon the filing of the complaint, the Court will examine the filing and if it is established that the complainant has a ownership stake in the property, the court will either make a ruling on whether partition is necessary or, if they require more information, they will nominate a partition referee to examine the property and documents make a recommendation the Court of whether partition is necessary and if so, in what method should it be done.

In almost every situation, if the parties cannot agree as to how the property should be split and don’t want to continue to share it, the Court will rule that the property is to be sold and the proceeds are to be split amongst the parties evenly. It should be understood by joint owners of real estate that this is one of the only actions the Court can take in this matter and is usually the fairest method of handling the property in the Court’s eyes. If parties cannot agree as to who should take possession of the property or who will buy-out the other’s ownership interest, they should be aware that the Court will likely order the house sold to a third party rather than awarding it to either of the two original owners.

When the initial partition complaint is brought, it can be noted in the complaint if the plaintiff believes they are entitled to a greater percentage of ownership based on individual contributions and payments toward the shared property. Examples of this would be mortgage payments undertaken by a single owner, improvements or repairs made by a single owner, or a greater percentage of the initial purchase payment paid by a single owner. All of these and more can be considered by the Court when they make their determination. While it will likely not result in the Court awarding the property to one party over the other, or ordering a buy-out from one side, it will go towards the Court’s consideration of what percentage of the sale proceeds to award to a single party rather than the default 50/50 split.

If you have a property you share with someone and you feel that this property can no longer be shared evenly between you, consider contacting the Law Office of Andrew Szocka P.C. at 815-455-8430, by going on our website, or by emailing us at info@szocka.com. We have extensive experience in the realm of partition and would love to assist you with your matter!

Interpleader and Its Place in Legal Disputes

Interpleader and Its Place in Legal Disputes

One of the biggest challenges that a bank, loan provider, trustee, or any other holder of money can face is what happens when you have multiple people who are all telling you that they are the rightful owner of the money and it should be given to them. An example would be when a bank holds money that is claimed to be owned by multiple people.

When legal claims start being threatened or filed, the last thing a holder of property wants is to face the potential for double liability or to be forced through a legal case to give property to someone only to be then sued later on by the other parties who were not given the property.

When there are multiple parties, all claiming the right to money, the answer to this dilemma is to file for Interpleader. Interpleader is a type of joinder device available in a civil action, and can be brought by either the plaintiff or the defendant. What it does is it allows the property holder, also known as the stakeholder, to bring all claimants into the same action, at the same time, instead of litigating separate claimants in multiple actions. By bringing an action for Interpleader, a stakeholder can have claimants dispute the issue among themselves, determine which claimants have a rightful claim to the property, and thus allow the stakeholder to avoid multiple liability

There are two legal authorities to bring an Interpleader action under: Federal Rule of Civil Procedure 22 and 28 U.S.C. § 1335.

Interpleader Action Under 28 U.S.C. § 1335

  1. In order for an action for Interpleader to be brought under 28 U.S.C. § 1335, at least two defendants must be citizens of different States as defined in 28 U.S.C. § 1332(a) or (c), and the value of the property in controversy must be at least $500.

Interpleader Action Under Rule 22

  1. In order for an action for Interpleader to be brought under Federal Rule 22 the case must either:
    1. arise under a federal statute, a federal treaty, and/or a provision of the United States Constitution; or
    2. meets the jurisdictional requirements of 28 U.S.C. § 1332, under which no plaintiff may be a citizen of the same State as any defendant, and the amount at stake must exceed the sum or value of $75,000:

There are two parts to an interpleader action, the first part is where the stakeholder proves to the Court that they are entitled to interpleader. The second part, if the Court agrees that the stakeholder is entitled to interpleader is for the stakeholder to deposit the disputed money with the Court. Only once the money is placed with the Court is the stakeholder able to be released from the litigation and have the parties finish the litigation amongst themselves.

If you are a stakeholder facing numerous claims from multiple parties based on property you are holding onto, interpleader may be the solution to your situation. If you need assistance with an interpleader claim, don’t hesitate, call the Law Office of Andrew Szocka at 815-455-8430 or email us at szocka@szocka.com. We would be happy to assist you with your interpleader action and any other business-related matter you may have.

NOTICE REQURIEMENTS FOR EVICTION IN ILLINOIS

NOTICE REQURIEMENTS FOR EVICTION IN ILLINOIS

So, you have a tenant that you want to evict. This could be due to them falling behind in rental payments, breaking a provision in the lease such as maintaining the property, or maybe you have a month-to-month tenancy with them and simply don’t want to continue on with the relationship. All of these instances are valid reasons to evict a tenant but one of the key mistakes made by landlords is how and when they deliver notice of their decision to end the tenancy.

When it comes to landlord-tenant law, Illinois is very strict when it comes to the notice requirement and this is often a key defense that a tenant can raise in an eviction action. In order to begin an eviction action, you have to declare the tenancy terminated. In order to declare the tenancy terminated, you MUST serve your tenant with proper notice. If they were not served proper notice, then they can argue that their tenancy has not yet been terminated and the eviction case against them must be dismissed and restarted once they have been served proper notice and the notice period has elapsed.

In Illinois, it is the preference of the Court to refer to the Lease Agreement signed by both parties for all terms of the tenancy, including for how notice is given. While a lease can set the terms for how notice can be given, rarely will Courts allow for a lease to remove the need for notice entirely.

In Illinois, when the lease is silent on the method for delivery of notice, the law strictly requires one of the following methods of service for a valid notice. 735 ILCS 5/9-211

  1. Hand delivering a written or printed notice directly to the tenant.
  2. Delivering the notice to a person at least 13 years old, residing on or in possession of the premises.
  3. Sending a copy of the notice to the tenant by certified or registered mail, with a returned receipt from the addressee.

A key mistake that many landlords make is believing that they can leave the notice posted on the front door and that will be sufficient. This is a mistake that often forces the dismissal of eviction cases and forces landlord to restart the whole process and incur higher court fees.

In addition to serving notice in the proper manner, it is equally as important to serve notice with a proper amount of time. Many landlords feel they can just deliver a 5-day notice to their tenant regardless of the reason for the eviction. This is not so.

Unless the signed lease prescribes 5-day notices for any violation, Illinois rules state that 5-day notices are only to be used for nonpayment of rent 735 ILCS 5/9-209. Other violations of the lease such as failure to maintain the property or repeated noise complaints often require a 10-day notice to the tenant 735 ILCS 5/9-210.

Finally, one of the most confusing aspects of notice delivery is when to deliver notice to a month-to-month tenant. Many landlords believe that all they must do is deliver a notice before the next month that says they no longer wish to continue with the tenancy. While it is true that the reason for the termination can be as simple as the landlord no longer wishes to rent to the tenant, the timing of the notice is extremely important. Notices to month-to-month tenants require a 30-day notice be given BEFORE the next rental period begins in order to terminate the tenancy. That means for example if your rental period begins on the 1st of each month and you wish to terminate your tenant’s tenancy in the month of July, you would need to serve them by June 1st and not a day later for the notice to be proper. 735 ILCS 5/9-207. If you failed to serve them before that date, you would need to wait until the following rental period to terminate the tenancy meaning the termination would not be official until August 1st.

If you need assistance with an eviction, the Law Office of Andrew Szocka, P.C. can help you. Call us today to schedule a free consultation to discuss your eviction matter. Our office employs a trusted process server to assist with delivery of all kinds of notices and summons.

What is an Interpleader Case

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

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.

 

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