Category: Property Disputes

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.

 

Illinois Riparian Rights

Posted December 14, 2022 by Law Office of Andrew Szocka

Illinois Riparian Rights

Traditionally, riparian rights are associated with property owners who have access to a body of water such as a lake or stream. Currently, there are two types of water rights. The first is a right to access the water, and the second is a right to make reasonable use of it. Generally, states have laws that define riparian rights. Depending on the state, some rights are regulated, while other rights are not. In addition, a lot of states have laws that encourage riparian owners to provide public access to the water. There are also several cases that address the legalities of water access.

Increasing demand for water for recreational purposes is causing states to pass legislation encouraging riparian owners to provide public access. Currently, Illinois has 48 bodies of water that are navigable. These include six branches of the Chicago River and Lake Michigan.

In Illinois, riparian rights are not only limited to a particular waterbody, but they also apply to all flowing streams. The Illinois Department of Natural Resources determines whether a waterway is navigable. It also controls how much water can be used by a landowner. It can also veto a dock or other structure that will interfere with the navigability of the water. State legislatures can also require a pro-rata reduction, depending on the seniority of use.

A recent Illinois Supreme Court case affirmed the lower courts holding that property owners on non-navigable water ways have the right to restrict access to the waterway. In this case, the plaintiffs wanted to kayak along the entire Mazon River. However, the defendants objected to the use of kayaks on portions of the river that flowed across their property. The defendants claimed that they had the right to prohibit the plaintiffs from kayaking on those portions of the river. The court disagreed with the plaintiffs, finding that the defendants had the right to bar access to portions of the river.

The riparian doctrine has been embodied in Illinois law for several decades. It has been used to protect property owners’ rights to water, including the right to build piers and docks. The courts have also enjoined landowners from making unreasonable use of their property.

If you are an owner of property on which a body of water lays, your legal rights to the use and enjoyment and control of that body of water depend on a number of facts. Consult with our office to evaluate your situation before restricting, limiting, or removing access to a waterway to avoid unnecessary legal challenges to your property rights.

SLANDER OF TITLE: POTENTIAL CONSEQUENCES OF RECORDING A FALSE DOCUMENT.

Posted August 13, 2022 by Law Office of Andrew Szocka

SLANDER OF TITLE: POTENTIAL CONSEQUENCES OF RECORDING A FALSE DOCUMENT.

Illinois recognizes a cause of action if a document is falsely recorded against your real estate property’s title.  This cause of action is referred to as “slander of title.”  Depending on the intent of the individual or entity that slandered your property’s title, it can result in a significant award of monetary damages in your favor.

In order to win a slander of title lawsuit, you must first correctly plead the required elements.  Generally, slander of title involves the recording of a document in the county where your property is located that subsequently damages the property’s title.  However, the recording of a document is not necessary required.  Written or even oral words can rise to the level of slander of title.  Jody D. v. Bank of America, N.A., 2018 IL App (3d) 170558-U.

Elements for slander of title are 1) oral or written words that falsely disparage the property’s title; 2) damages suffered by the individual that owns the property, and 3) a degree of malice.  Jody D., 2018 IL App (3d) 170558-U; Nelson v. Bayview Loan Servicing, LLC, 2014 IL App (5th) 120419-U.

Any document that is inappropriately recorded, or any words or writings that disparage the property’s title and damage the property owner could form the basis for a slander of title claim.  The issues that arise in Illinois case law related to slander of title tend to focus more on damages suffered by the property owner and the degree of malice that motivated the other party.

First, damages must actually exist.  In Nelson, plaintiff brought an action against a loan company for failure to release a mortgage after the underlying loan was paid off.  Id. at ¶ 77.  The plaintiff failed to show how he was monetarily damaged by the unreleased mortgage.  Id.  As a result, judgment was granted in favor of the loan company.

An example of damages may have been that the plaintiff was not given a loan, or was not given a loan at a lower interest rate, due to the presence of the unreleased mortgage.

The failure to show any malice on the part of the individual or entity that purportedly slandered your title can also ruin a cause of action.  In Roy Zenere Trucking & Excavating, Inc. v. Build Tech, Inc., 2016 IL App (3d) 140946, a group of contractors recorded mechanics’ liens against a property owner’s title.  Id. at ¶ 49.  But the property owner failed to establish any fraudulent intent on the part of the contractors.  The court stated that “To prove malice, a plaintiff must show that the defendant knew that the disparaging statements were made with reckless disregard of their truth or falsity.  The law in Illinois is that if a party has reasonable grounds to believe that he had legal or equitable title or even a claim, then assertion of this claim does not amount to slander of title.”  Id.  As a result, judgment was entered in favor of the contractors.  Id.

Yet when malice exists, it can result in a monetary award to the property owner, including punitive damages.  See Chicago Title and Trust Co. v. Levine, 333 Ill.App.3d 420, 422 (3rd Dist. 2002).  In Levine, an individual recorded a lien against property despite an existing court order not to further encumber the property.  Id. at 424.  The property owner also showed that the lienholder knew of the existing court order.  Id.  The court awarded the property owner $3,929.60 in attorneys’ fees and $30,000.00 in punitive damages.  Id. at 422.

It is clear from the Illinois case law that a slander of title cause of action is difficult to bring and maintain.  However, in the presence of actual damages and malice, a property owner can prevail.

For additional reading on slander of title see:

 

Gambino v. Boulevard Mortg. Corp., 398 Ill.App.3d 21 (1st Dist. 2009);

Contract Development Corp. v. Beck, 255 Ill.App.3d 660 (2nd Dist. 1994);

Home Investments Fund v. Robertson, 10 Ill.App.3d 840 (2nd Dist. 1973).

 

Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

 

Residential Real Property Disclosure Act

Posted August 5, 2022 by Law Office of Andrew Szocka

Residential Real Property Disclosure Act

The Residential Real Property Disclosure Act (765 ILCS 77) was passed in 1998 to protect home buyers from sellers who falsely report conditions of their property during a real estate transaction. The disclosure act is intended to provide buyers with a reliable representation on the major conditions of the property. Under this act, the seller has to deliver to the prospective buyer a written disclosure statement before the signing of a written agreement between the seller and the prospective buyer. The goal of the disclosure is to report any damages or material defects to the residential property.

According to the Act, material defects are required to be disclosed by the Seller. Based on a disclosed material defect, a prospective buyer may terminate the contract 3 business days after the receipt of the report (765 ILCS 77/40). Some Sellers fail to disclose material defects to the Buyers, which may result in a Buyer seeking damages. The Act provides a remedy for damages acquired by a prospective buyer of the residential property who discovers false information on the disclosure report before the closing transaction. If a seller knowingly violates the Act, “…he…shall be liable in the number of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party.” (765 ILCS 77/55)

Under this disclosure act the seller is not liable if (1) the seller had no knowledge of the error, (2) the error was based on reasonable belief that a material defect had been corrected, or (3) the error was based on information provided by a licensed professional. In order to complete the disclosure statement, the seller is not obligated to make an investigation or inquiry into any defects. (765 ILCS 77/25) The seller does become liable if he or she fails to provide the disclosure. The disclosure document must be provided prior to the transfer of the residential real property. If the seller refuses or fails to provide the disclosure, the buyer does have the right to terminate the contract.

If you need assistance with a real estate transaction, local attorney Andrew Szocka provides thorough and speedy real estate transaction assistance in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455 – 8430.

Quiet Title – Avoiding Property Disputes Before They Happen.

Posted August 2, 2022 by Law Office of Andrew Szocka

Quiet Title – Avoiding Property Disputes Before They Happen.

How many neighbors have fallen out over an extension that has been built, blocking out some of the sunlight into the next-door neighbor’s house, or a hedge planted over the property line, or a fence erected in the wrong spot? Bringing an action to quiet title does not require the parties are in an active dispute. It is a useful action to preemptively solve a question concerning ownership of a piece of property. There are, however, some important times to file a quiet title claim:

  1. When you are uncertain about your property boundaries – You may have a problem knowing where the exact borders of your real estate property are. This can happen because of an incomplete or sloppy survey or a dispute with your neighbor.
  2. When there are errors on the deed – The person creating your title deed can make clerical errors that affect you in the future if you fail to notice immediately. Whenever you receive your title deed, check to see if everything on it is right before you keep it.
  3. When dealing with the heirs of a homeowner – Usually, when a person with property dies in Illinois, the court will distribute that property to their heirs, sometimes selling it and dividing the proceeds among them. If you are interested in that piece of land, you will need to confirm that all heirs have agreed to sell it, and a quiet title lawsuit is the good way to do this.
  4. When there is an easement on a property – There are some properties, where you are supposed to share something with your neighbor, like a driveway, well, or boat dock. If this becomes a problem, you may need a quiet title lawsuit to determine the right ownership.

When should you speak with an attorney? The best to time to speak with an attorney is as soon as you think there is another individual who may have an ownership interest in the whole property, or an interest in a piece of the property, or the right use, cross, or access the property. It is important to speak with an experienced real estate attorney to explore what legal avenues may be available to help clarify and resolve questions of ownership interest before the parties disagree about the use or changes to the property.

Local attorney Andrew Szocka provides free initial consultations to help make sure you know what the best course of action may be. Visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430 to talk with an attorney about your property concerns.