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 (5^th) 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 (3^rd 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 (1^st Dist. 2009);

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

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

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

EJECTMENT: THE STATUTE AND CASE LAW BEHIND THE CAUSE OF ACTION

Posted May 26, 2022 by Law Office of Andrew Szocka

EJECTMENT: THE STATUTE AND CASE LAW BEHIND THE CAUSE OF ACTION

An ejectment action can be a useful tool to help a client recover real estate when another party is wrongfully in possession. Ejectment is based in statutory law. See 735 ILCS 5/6-101, et seq.

A complaint for ejectment must contain certain allegations. 735 ILCS 5/6-109. Plaintiff must plead that 1) he had possession of the premises after obtaining legal title, 2) defendant subsequently took possession of the premises, 3) at present, defendant continues to unlawfully hold possession from the plaintiff, and any damages suffered by plaintiff as a result of the ejectment, which could even be a nominal sum. Id.

The complaint must also describe the property with sufficient certainty. 735 ILCS 5/6-110. This may be as simple as the property’s common address. However, it is probably safer to include the property’s legal description and parcel identification number. At least one older Illinois case held that a legal description was sufficient to identify the property. See Parr v. Horn, 38 Ill. 226 (1865).

Other Illinois case law on ejectment has stated that a “a plaintiff in ejectment must recover on the strength of his own title rather than the weakness of his adversary’s title.” Bulatovic v. Dobritchanin, 252 Ill.App.3d 122, 128-29 (1^st Dist. 1993). In other words, plaintiff’s interest must be “higher and better” than that of defendant. Whitham v. Ellsworth, 259 Ill. 243, 246 (1913).

The best way for plaintiff to prove an interest in the property may be with a recorded conveyance. Bulatovic, 252 Ill.App.3d at 128. Bulatovic states that the plaintiff “must show proof of title under a deed sufficient to entitle him to possession.” Id. However, the ejectment statute provides for an action brought by an heir or legatee. 735 ILCS 5/6-102. So, it is at least necessary for the plaintiff to show a link between himself and the holder of the property’s legal title. Department of Conservation ex rel. People v. Fairless, 273 Ill.App.3d 705, 711 (5^th Dist. 1995).

As far as proof of defendant’s possession, it is not necessary for the plaintiff to prove this element for ejectment unless the defendant files a verified answer that specifically denies possession. 735 ICLS 5/6-118.

Note that ejectment can apply to defendant’s unauthorized possession of an entire parcel of property, or only a portion of the parcel. See Tatham v. Fields, 2013 IL App (5^th) 130179-U.

In Tatham, plaintiff permitted defendant to put a temporary boat lift on plaintiff’s property, but specifically prohibited defendant from installing the lift as a permanent structure. Id. at ¶ 10. Despite this instruction, defendant upgraded the boat lift to become permanent. Id. at ¶ 11. Plaintiff demanded that defendant remove the structure from his property. Id. at ¶ 13. Defendant refused and plaintiff filed an ejectment action to remove defendant’s possession from that portion of plaintiff’s property. Id. at 4. The court granted plaintiff’s ejectment request. Id. at ¶ 33.

Although grounded in statutory law, there are a number of Illinois cases related to ejectment that further interpret the ejectment statute and provide guidance for an attorney looking to successfully plead and prove an ejectment action.

For additional reading on ejectment actions see:

Cree Development Corp. v. Mid-America Advertising Co., 294 Ill.App.3d 324 (5^th Dist. 1997);

Parks v. Parks, 2019 IL App (3d) 170845;

Dagit v. Childerson, 391 Ill. 611 (1945).

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

EJECTMENT LAWSUITS: OR, “GET OFF MY PROPERTY.”

Posted May 26, 2022 by Law Office of Andrew Szocka

EJECTMENT LAWSUITS: OR, “GET OFF MY PROPERTY.”

In Illinois, it is not unusual for two or more parties to fight over who is the rightful owner of real estate, and as the owner has the right to possession of that real estate. When this happens, one party may file a lawsuit for “ejectment.”

An ejectment action asks a court to determine the property’s rightful owner. If the party possessing the land is determined to not be the rightful owner, the court will “eject” that party from the property so that the rightful owner can take possession.

The party bringing the ejectment litigation is called the “Plaintiff.” The Plaintiff must demonstrate to the court that he obtained title to the property and subsequently took possession of that property. Then, that the other party, called the “Defendant” took possession of the land. Finally, the Defendant continues to unfairly possess the property by occupying it.

The best way for a Plaintiff to show a court that he obtained lawful title to property is to produce a deed that conveys the property to the Plaintiff. However, there may be other ways for the Plaintiff to establish that his right to possession of the property is “better” than that of the Defendant. It is a good idea to consult an attorney if you believe you have right to possession of land that another party is occupying.

Keep in mind that the other party’s improper possession may not be total possession of your property, but only a portion of that property. For example, if your neighbor were to build something on your property without your permission, an action for ejectment may be appropriate. Your neighbor is possessing your whole property, but he is unlawfully possessing a portion of it.

Having a good attorney can help further understand if an ejectment lawsuit may be appropriate in a certain situation.

Local attorney Andrew Szocka is experienced in many real estate matters, including ejectment actions. In addition, Andrew provides thorough and speedy estate planning, probate, and business organization help 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.

CONDOMINIUM LIENS: WHAT EVERY CONDOMINIUM OWNER SHOULD KNOW

Posted May 25, 2022 by Law Office of Andrew Szocka

CONDOMINIUM LIENS: WHAT EVERY CONDOMINIUM OWNER SHOULD KNOW

If you are a member of a condominium association, or thinking about purchasing a condominium, it is important that you understand condominium assessments and liens. Condominium associations typically have monthly assessments, which is a monthly payment that each member makes to the association. Monthly assessments are used by the association to maintain common areas, which are areas in the association where all members share an ownership interest. This could be a lobby, pool, or garden.

A condominium may also assess a special assessment. This special assessment is usually a way for an association to pay for a large repair or improvement project, the cost of which the monthly assessments would not cover.

Associations provide themselves the power to collect monthly and special assessments when they are formed. Condominium formation includes the drafting of a Declaration of Covenants, Conditions, and Restrictions (“Declaration”). If you own a condominium, you should familiarize yourself with your association’s Declaration. If you are planning to purchase a condominium unit, you will receive a copy of the association’s Declaration prior to the actual closing.

The Declaration will almost always allow the association to set monthly and special assessments that each member of the association must pay. In addition, the Declaration will nearly certainly state that any individual that owns property included in the association is an association member, and responsible for payment of the monthly and special assessment. Finally, the Declaration will provide processes that the association can use to collect unpaid monthly and special assessments from its members.

Although the Declaration provides for an association’s collection means, association collection of unpaid assessments is also supported by Illinois law. The Illinois Condominium Property Act (765 ILCS 605/9(g)) states that any unpaid monthly or special assessments that are unpaid by a unit owner, shall be a lien on that unit owner’s property. The amount of the lien includes interest, late charges, and attorney fees that the association spends in an effort to collect the unpaid assessments.

The association’s lien on your property is superior (prior in right) to any other liens recorded against your property, except 1) your first mortgage and 2) any unpaid local, state, or federal taxes. If you have a second mortgage on the property, the association’s lien can obtain priority over that mortgage if it meets certain requirements within the Illinois Condominium Property Act.

If you have a condominium lien on your property, you will want to resolve it by paying the unpaid assessments. Otherwise, you will not be able to sell your condominium, or the association may foreclose its lien and be entitled to even more interest, late charges, and attorney fees for which you will be responsible.

Planning on buying or selling a condominium? Or concerned about a condominium lien on your property? Local attorney Andrew Szocka provides thorough and speedy real estate and estate planning help 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.

Issues at Closing

Posted May 23, 2022 by Law Office of Andrew Szocka

When Are You Done With The Transaction.

In a real estate transaction on day the property is transfer is referred to as the closing. This is a date where everyone signs the documents and the house is officially transferred over. A closing date can be hectic for some, as usually people are moving, packing, cleaning, and setting up for their new home. However, just because you are at the closing table, does not mean the transaction is guaranteed to go through. There are often last-minute walk-through issues or errors which can arise without warning and threaten the deal. It is in these situations where you need a skilled real estate attorney representing you who can negotiate on your behalf.

What is a Walk-through?

Before a buyer is able to sign the documentation, they are entitled to a last walk-through of the house. This is done often with the Buyer’s real estate agent. This is the time Buyer looks through the property to confirm it is still in the condition it was in when they first decided to purchase the house. Additionally, this is the time for the Buyer to check and make sure any pending home inspection items are fixed to the Buyer’s satisfaction.

What if there is an issue during my walk through?

In a perfect transaction, there would be no issues during the walk-through, however this is not always the case. There could be imperfections with the house which the Buyer wants remedied before the closing can take place. For example, the house may not be cleaned, the Seller may have left items in the home which the Buyer did not want, or unexpected power outages or storms could damage the property. If the Buyer wants to move forward with the transaction, there may need to be some last-minute negotiations or dealings before the deal can fully commence. It is in these situations you need an experience attorney to represent you and your interests. Owning a home can be up to a thirty (30) year commitment. It is important you feel comfortable in your home from the moment you purchase it.

Conversely, as a Seller, you also need an attorney to protect you as well. If a Buyer has an issue during the walk-through, it may not be in your best interest to remedy the situation. When walk-through issues arise, it can become difficult to navigate, having an advocate on your side can relieve your stress and get you the best results.

Category: Real Estate Contract Disputes