Category: Resources

Quiet Title – Avoiding Property Disputes Before They Happen.

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.

 

Recent Changes to Illinois Wage Payment and Collection Act

Recent Changes to Illinois Wage Payment and Collection Act Creates New Risk for Primary Contractors

The Illinois Wage Payment and Collection Act (Wage Act) is a powerful statute which creates significant penalties for employers who fail to pay their employees earned wages and benefits. A significant feature of the Act, which gives teeth to the provisions, is the ability of the plaintiff to collect attorney’s fees and costs for bringing an action against an employer. This provision makes it easier for employees to make claims against employers and increases an employer’s risk of a potentially costly lawsuit.

On June 10, 2022, Illinois Governor J.B. Pritzker approved HB 5412, which has now been enter into law as Public Act 102-1076. These amendments to the Illinois Wage Payment and Collections Act, 820 ILCS 115 et seq., render owner-retained “prime” contractors entering into construction contracts in Illinois liable for claims brought under the Wage Act against their subcontractors at any tier.

The Act amends the Wage Act by adding section 13.5, Primary Contractor Responsibility for Wage Claims in Construction Industry. This amendment takes immediate effect and applies to “all contracts entered into on or after July 1, 2022.” The Act does not specify whether or how it will be applied in the event of preexisting contractual relationships (such as ongoing contracts modified by amendment or master-project agreements).

Primary contractors are now liable under the Wage Act for claims against a subcontractor which includes:

  • Unpaid wages;
  • Fringe or other benefit payments or contributions;
  • Interest owed;
  • Penalties assessed by the Illinois Department of Labor; and
  • Attorney’s fees and costs.

While the statute requires the subcontractor to indemnify the primary contractor, it also provides for the parties to contract otherwise. Primary contractors should reach out to review their subcontractor agreements, including those already in force, to determine whether they are at risk of unexpected and potentially costly wage claims.

If you need information contact Attorney Andrew Szocka.  To schedule a free initial consultation, call the office at (815) 455-8430.

SLANDER OF TITLE: YOUR PROPERTY’S TITLE HISTORY CAN BE PROTECTED.

SLANDER OF TITLE: YOUR PROPERTY’S TITLE HISTORY CAN BE PROTECTED.

If you are an individual who owns real estate in Illinois, you should be aware of your property’s title history.  The title history is a list of all documents recorded against the property in the county where the property sits.

Recorded documents are submitted to the county’s Recorder’s Office and are assigned a document number.  Documents recorded against your property are usually available to view on your county Recorder’s website.

A typical title history for a residential property likely includes only deeds and mortgages.  For example, when one party sells a house, they convey it to another party with a deed.  The party buying the house may get a mortgage that secures the loan used to buy the house.  In this case, the mortgage is recorded against the property in favor of the lender that loaned the other party the money to purchase the home.  When the property is sold again, the previous mortgage is usually paid off and released.  In this way, a title history may only reflect a series of deeds, mortgages, and released mortgages.

But not all title histories are clear.  It is possible for someone to record a document against your property with bad intent.  Illinois courts may consider this a “slander” of your property’s title and award monetary damages.

Slander of title generally occurs when someone maliciously records a false document against your property’s title.  If you are damaged by this recording, you pay to have it removed, or it affects your ability to sell the property, you may be entitled to damages.

An Illinois court may even award damages that are punitive, or meant as a punishment, against the person who slandered title.  This depends on the level of maliciousness of the individual who slandered title and the damage actually done to your property’s title.

For example, many people have disputes with creditors.  If you pay what is owed and the creditor still records a lien against your property, the creditor may be slandering your title.  More common is a dispute with an acquittance or relative when they record a deed that affects your property and purports to convey it to somebody else.

As a result, it is prudent to periodically check your title history.  If you believe someone recorded an inappropriate document against your property, local attorney Andrew Szocka provides thorough and speedy real estate help in the Chicagoland area.  To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

 

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

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 (1st 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 (5th 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 (5th) 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 (5th 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.

 

PROPERTY OWNERSHIP: THE OPTIONS AND ASSOCIATED ADVANTAGES.

PROPERTY OWNERSHIP: THE OPTIONS AND ASSOCIATED ADVANTAGES.

If you are an individual who owns real estate in Illinois, you may have questions about how your ownership is classified under Illinois law.  Illinois has many categories of land ownership, and each may have advantages or disadvantages depending on your situation.

The most common types of real estate ownership are 1) Individually, 2) Tenants in Common, 3) Joint Tenants, 4) Tenants by the Entirety, and 5) in a Trust.

An individual with property is probably the simplest form or ownership.  However, this form of ownership does come with potential complications.  If you own property individually, you may have been conveyed the property in “Fee Simple,” or as a “Life Estate.”

Fee simple ownership provides absolute control.  Your rights to the land are indefinite and can be conveyed at any time and by any means.  If you were granted only a Life Estate in property, your ownership rights are more limited.  Upon your death, the property will revert back to another individual or entity, often called the “remainderman.”  As a result, almost all property transactions made by the owner of a Life Estate interest must be approved by the remainderman.

Just as common as individual ownership is ownership by two or more people who own together as a group.  This is when the distinction between Tenants in Common, Joint Tenants, and Tenants by the Entirety is important.

Tenants in Common own portions of property.  If there are two Tenants in Common, each generally owns one half of that property.  Three Tenants in Common typically own portions of the property in thirds.  It should be noted that Tenants in Common can decide to own the land in any percentage they deem appropriate, e.g. 80%/20%, etc.

Upon the death of one Tenant in Common, his or her interest goes to the decedent’s estate.  For example, if A, B, and C own land as Tenants in Common with equal interests, and C dies, the property is now owned a third by A, a third by B, and a third by C’s estate.

Joint Tenants own land in a significantly different manner than Tenants in Common.  The most important distinction is called the “Right of Survivorship.”  If two Joint Tenants own property, and one dies, the whole land automatically transfers by operation of law (no written deed required) to the other Joint Tenant.

Tenants by the Entirety are similar to Joint Tenants.  As with Joint Tenants, Tenants by the Entirety enjoy the Right of Survivorship.  When one Tenant by the Entirety dies, the land automatically goes to the other Tenant.

But there are unique characteristics of Tenants by the Entirety.  First, it is only available to married couples.  Second, spouses are protected from certain creditors if they own property as Tenants by the Entirety.  If one spouse owes a debt to a creditor that is solely in his or her name, the creditor cannot attach a judgment for that debt to the other spouse’s interest in the property.  As a result of these benefits, many married couples prefer to own property as Tenants by the Entirety.

Finally, real estate can be owned in a Trust.  You can convey real estate into a Trust during your lifetime, or your Last Will and Testament can convey the property into the Trust at your death.

The advantage of putting real estate in a Trust can be significant.  Illinois law requires all estates that own land to go through a process called “Probate.”  This is procedure when a court appoints someone to distribute the property owned by your estate.  Probate can be a relatively long and expensive process.  Estates without real estate may be exempt from Probate, saving time and money.

If you are interested in learning more about options regarding ownership of your real estate, or whether keeping property in a Trust is appropriate, 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.