Full Text of HB2519 095th General Assembly
HB2519 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB2519
Introduced 2/26/2007, by Rep. Michael J. Madigan - Barbara Flynn Currie SYNOPSIS AS INTRODUCED: |
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65 ILCS 5/11-31-1 |
from Ch. 24, par. 11-31-1 |
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Amends the Illinois Municipal Code. Makes a technical change in a Section
concerning the demolition, repair, enclosure, or remediation of dangerous and
unsafe buildings.
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A BILL FOR
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HB2519 |
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LRB095 01287 HLH 21289 b |
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| AN ACT concerning local government.
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| Be it enacted by the People of the State of Illinois, | 3 |
| represented in the General Assembly:
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| Section 5. The Illinois Municipal Code is amended by | 5 |
| changing Section 11-31-1 as follows:
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| (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
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| Sec. 11-31-1. Demolition, repair, enclosure, or | 8 |
| remediation.
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| (a) The
The corporate authorities of each municipality may | 10 |
| demolish, repair,
or enclose or cause the demolition, repair, | 11 |
| or enclosure of
dangerous and unsafe buildings or uncompleted | 12 |
| and abandoned buildings
within the territory of the | 13 |
| municipality and may remove or cause the
removal of garbage, | 14 |
| debris, and other hazardous, noxious, or unhealthy
substances | 15 |
| or materials from those buildings. In any county
having adopted | 16 |
| by referendum or otherwise a county health department as
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| provided by Division 5-25 of the Counties Code or its | 18 |
| predecessor, the
county board of that county may exercise those | 19 |
| powers with regard to
dangerous and unsafe buildings or | 20 |
| uncompleted and abandoned buildings
within the territory of any | 21 |
| city, village, or incorporated town having less
than 50,000 | 22 |
| population. | 23 |
| The corporate authorities shall apply to the circuit court |
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LRB095 01287 HLH 21289 b |
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| of the county
in which the building is located (i) for an order | 2 |
| authorizing action to
be taken with respect to a building if | 3 |
| the owner or owners of the building,
including the lien holders | 4 |
| of record, after at least 15 days' written
notice by mail so to | 5 |
| do, have failed to put the building in a safe
condition or to | 6 |
| demolish it or (ii) for an order requiring the owner or
owners | 7 |
| of record to demolish, repair, or enclose the building or to | 8 |
| remove
garbage, debris, and other hazardous, noxious, or | 9 |
| unhealthy substances or
materials from the building. It is not | 10 |
| a defense to the cause of action
that the building is boarded | 11 |
| up or otherwise enclosed, although the court
may order the | 12 |
| defendant to have the building boarded up or otherwise
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| enclosed. Where, upon diligent search, the identity or | 14 |
| whereabouts of the
owner or owners of the building, including | 15 |
| the lien holders of record,
is not ascertainable, notice mailed | 16 |
| to the person or persons in whose name
the real estate was last | 17 |
| assessed is sufficient notice under this Section.
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| The hearing upon the application to the circuit court shall | 19 |
| be expedited
by the court and shall be given precedence over | 20 |
| all other suits.
Any person entitled to bring an action under | 21 |
| subsection (b) shall have
the right to intervene in an action | 22 |
| brought under this Section.
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| The cost of the demolition, repair, enclosure, or removal | 24 |
| incurred by
the municipality, by an intervenor, or by a lien | 25 |
| holder of record,
including court costs, attorney's fees, and | 26 |
| other costs related to the
enforcement of this Section, is |
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| recoverable from the owner or owners of
the real estate or the | 2 |
| previous owner or both if the property was transferred
during | 3 |
| the 15 day notice period and is a lien on the real estate; the | 4 |
| lien is
superior to all prior existing liens and encumbrances, | 5 |
| except taxes, if, within
180 days after the repair, demolition, | 6 |
| enclosure, or removal, the municipality,
the lien holder of | 7 |
| record, or the intervenor who incurred the cost and expense
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| shall file a notice of lien for the cost and expense incurred | 9 |
| in the office of
the recorder in the county in which the real | 10 |
| estate is located or in the office
of the registrar of titles | 11 |
| of the county if the real estate affected is
registered under | 12 |
| the Registered Titles (Torrens) Act.
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| The notice must consist of a sworn statement setting out | 14 |
| (1) a
description of the real estate sufficient for its | 15 |
| identification, (2)
the amount of money representing the cost | 16 |
| and expense incurred, and (3) the
date or dates when the cost | 17 |
| and expense was incurred by the municipality,
the lien holder | 18 |
| of record, or the intervenor. Upon payment of the cost and
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| expense by the owner of or persons interested in the property | 20 |
| after the
notice of lien has been filed, the lien shall be | 21 |
| released by the
municipality, the person in whose name the lien | 22 |
| has been filed, or the
assignee of the lien, and the release | 23 |
| may be filed of record as in the case
of filing notice of lien. | 24 |
| Unless the lien is enforced under subsection (c),
the lien may | 25 |
| be enforced by foreclosure proceedings as in the case of
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| mortgage foreclosures under Article XV of the Code of Civil |
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| Procedure or
mechanics' lien foreclosures. An action to | 2 |
| foreclose this lien
may be commenced at any time after the date | 3 |
| of filing of the notice of
lien. The costs of foreclosure | 4 |
| incurred by the municipality, including
court costs, | 5 |
| reasonable attorney's fees, advances to preserve the property,
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| and other costs related to the enforcement of this subsection, | 7 |
| plus
statutory interest, are a lien on the real estate and are | 8 |
| recoverable by
the municipality from the owner or owners of the | 9 |
| real estate.
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| All liens arising under this subsection (a) shall be | 11 |
| assignable.
The assignee of the lien shall have the same power | 12 |
| to enforce the lien
as the assigning party, except that the | 13 |
| lien may not be
enforced under subsection (c).
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| If the appropriate official of any municipality determines | 15 |
| that any
dangerous and unsafe building or uncompleted and | 16 |
| abandoned building within
its territory fulfills the | 17 |
| requirements for an action by the municipality
under the | 18 |
| Abandoned Housing Rehabilitation Act, the municipality may
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| petition under that Act in a proceeding brought under this | 20 |
| subsection.
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| (b) Any owner or tenant of real property within 1200 feet | 22 |
| in any
direction of any dangerous or unsafe building located | 23 |
| within the territory
of a municipality with a population of | 24 |
| 500,000 or more may file with the
appropriate municipal | 25 |
| authority a request that the municipality apply to
the circuit | 26 |
| court of the county in which the building is located for an
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| order permitting the demolition, removal of garbage, debris, | 2 |
| and other
noxious or unhealthy substances and materials from, | 3 |
| or repair or enclosure of
the building in the manner prescribed | 4 |
| in subsection (a) of this Section.
If the municipality fails to | 5 |
| institute an action in circuit court within 90
days after the | 6 |
| filing of the request, the owner or tenant of real property
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| within 1200 feet in any direction of the building may institute | 8 |
| an action
in circuit court seeking an order compelling the | 9 |
| owner or owners of record
to demolish, remove garbage, debris, | 10 |
| and other noxious or unhealthy
substances and materials from, | 11 |
| repair or enclose or to cause to be
demolished, have garbage, | 12 |
| debris, and other noxious or unhealthy substances
and materials | 13 |
| removed from, repaired, or enclosed the building in question.
A | 14 |
| private owner or tenant who institutes an action under the | 15 |
| preceding sentence
shall not be required to pay any fee to the | 16 |
| clerk of the circuit court.
The cost of repair, removal, | 17 |
| demolition, or enclosure shall be borne by
the owner or owners | 18 |
| of record of the building. In the event the owner or
owners of | 19 |
| record fail to demolish, remove garbage, debris, and other | 20 |
| noxious
or unhealthy substances and materials from, repair, or | 21 |
| enclose the building
within 90 days of the date the court | 22 |
| entered its order, the owner or tenant
who instituted the | 23 |
| action may request that the court join the municipality
as a | 24 |
| party to the action. The court may order the municipality to | 25 |
| demolish,
remove materials from, repair, or enclose the | 26 |
| building, or cause that action to
be taken upon the request of |
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| any owner or tenant who instituted the action or
upon the | 2 |
| municipality's request. The municipality may file, and the | 3 |
| court may
approve, a plan for rehabilitating the building in | 4 |
| question. A court order
authorizing the municipality to | 5 |
| demolish, remove materials from, repair, or
enclose a building, | 6 |
| or cause that action to be taken, shall not preclude the
court | 7 |
| from adjudging the owner or owners of record of the building in | 8 |
| contempt
of court due to the failure to comply with the order | 9 |
| to demolish, remove
garbage, debris, and other noxious or | 10 |
| unhealthy substances and materials from,
repair, or enclose the | 11 |
| building.
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| If a municipality or a person or persons other than the | 13 |
| owner or
owners of record pay the cost of demolition, removal | 14 |
| of garbage, debris, and
other noxious or unhealthy substances | 15 |
| and materials, repair, or enclosure
pursuant to a court order, | 16 |
| the cost, including court costs, attorney's fees,
and other | 17 |
| costs related to the enforcement of this subsection, is
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| recoverable from the owner or owners of the real estate and is | 19 |
| a lien
on the real estate; the lien is superior to all prior | 20 |
| existing liens and
encumbrances, except taxes, if, within 180 | 21 |
| days after the
repair, removal, demolition, or enclosure, the | 22 |
| municipality or the person or
persons who paid the costs of | 23 |
| demolition, removal, repair, or enclosure
shall file a notice | 24 |
| of lien of the cost and expense incurred in the office
of the | 25 |
| recorder in the county in which the real estate is located or | 26 |
| in the
office of the registrar of the county if the real estate |
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| affected is
registered under the Registered Titles (Torrens) | 2 |
| Act. The notice shall be
in a form as is provided in subsection | 3 |
| (a). An owner or tenant who
institutes an action in circuit | 4 |
| court seeking an order to compel the owner
or owners of record | 5 |
| to demolish, remove materials from, repair, or enclose any
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| dangerous or unsafe building, or to cause that action to be | 7 |
| taken under this
subsection may recover court costs and | 8 |
| reasonable attorney's fees for
instituting the action from the | 9 |
| owner or owners of record of the building.
Upon payment of the | 10 |
| costs and expenses by the owner of or a person
interested in | 11 |
| the property after the notice of lien has been filed, the
lien | 12 |
| shall be released by the municipality or the person in whose | 13 |
| name the
lien has been filed or his or her assignee, and the | 14 |
| release may be filed of
record as in the case of filing a | 15 |
| notice of lien. Unless the lien is
enforced under subsection | 16 |
| (c), the lien may be enforced by foreclosure
proceedings as in | 17 |
| the case of mortgage foreclosures under Article XV of the
Code | 18 |
| of Civil Procedure or mechanics' lien foreclosures. An action | 19 |
| to
foreclose this lien may be commenced at any time after the | 20 |
| date of filing
of the notice of lien. The costs of foreclosure | 21 |
| incurred by the
municipality, including court costs, | 22 |
| reasonable attorneys' fees, advances
to preserve the property, | 23 |
| and other costs related to the enforcement of
this subsection, | 24 |
| plus statutory interest, are a lien on the real estate
and are | 25 |
| recoverable by the municipality from the owner or owners of the
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| real estate.
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| All liens arising under the terms of this subsection (b) | 2 |
| shall be
assignable. The assignee of the lien shall have the | 3 |
| same power to
enforce the lien as the assigning party, except | 4 |
| that the lien may not be
enforced under subsection (c).
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| (c) In any case where a municipality has obtained a lien | 6 |
| under
subsection (a), (b), or (f), the municipality may enforce | 7 |
| the
lien
under
this subsection (c) in the same proceeding in | 8 |
| which the lien is authorized.
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| A municipality desiring to enforce a lien under this | 10 |
| subsection (c) shall
petition the court to retain jurisdiction | 11 |
| for foreclosure proceedings under
this subsection. Notice of | 12 |
| the petition shall be served, by certified or
registered mail, | 13 |
| on all persons who were served notice under subsection
(a), | 14 |
| (b), or (f). The court shall conduct a hearing on the petition | 15 |
| not
less than 15
days after the notice is served. If the court | 16 |
| determines that the
requirements of this subsection (c) have | 17 |
| been satisfied, it shall grant the
petition and retain | 18 |
| jurisdiction over the matter until the foreclosure
proceeding | 19 |
| is completed. The costs of foreclosure incurred by the
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| municipality, including court costs, reasonable attorneys' | 21 |
| fees, advances
to preserve the property, and other costs | 22 |
| related to the enforcement of
this subsection, plus statutory | 23 |
| interest, are a lien on the real estate and
are recoverable by | 24 |
| the municipality from the owner or owners of the real
estate. | 25 |
| If the court denies the petition, the municipality may enforce | 26 |
| the
lien in a separate action as provided in subsection (a), |
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LRB095 01287 HLH 21289 b |
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| (b), or
(f).
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| All persons designated in Section 15-1501 of the Code of | 3 |
| Civil Procedure
as necessary parties in a mortgage foreclosure | 4 |
| action shall be joined as
parties before issuance of an order | 5 |
| of foreclosure. Persons designated
in Section 15-1501 of the | 6 |
| Code of Civil Procedure as permissible parties
may also be | 7 |
| joined as parties in the action.
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| The provisions of Article XV of the Code of Civil Procedure | 9 |
| applicable to
mortgage foreclosures shall apply to the | 10 |
| foreclosure of a lien under
this subsection (c), except to the | 11 |
| extent that those provisions are
inconsistent with this | 12 |
| subsection. For purposes of foreclosures
of liens under this | 13 |
| subsection, however, the redemption period described in
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| subsection (b) of Section 15-1603 of the Code of Civil | 15 |
| Procedure shall end
60 days after the date of entry of the | 16 |
| order of foreclosure.
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| (d) In addition to any other remedy provided by law, the | 18 |
| corporate
authorities of any municipality may petition the | 19 |
| circuit court to have
property declared abandoned under this | 20 |
| subsection (d) if:
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| (1) the property has been tax delinquent for 2 or more | 22 |
| years or bills
for water service for the property have been | 23 |
| outstanding for 2 or more years;
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| (2) the property is unoccupied by persons legally in | 25 |
| possession; and
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| (3) the property contains a dangerous or unsafe |
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| building.
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| All persons having an interest of record in the property, | 3 |
| including tax
purchasers and beneficial owners of any Illinois | 4 |
| land trust having title to
the property, shall be named as | 5 |
| defendants in the petition and shall be
served with process. In | 6 |
| addition, service shall be had under Section
2-206 of the Code | 7 |
| of Civil Procedure as in other cases affecting property.
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| The municipality, however, may proceed under this | 9 |
| subsection in a
proceeding brought under subsection (a) or (b). | 10 |
| Notice of the petition
shall be served by certified or | 11 |
| registered mail on all persons who were
served notice under | 12 |
| subsection (a) or (b).
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| If the municipality proves that the conditions described in | 14 |
| this
subsection exist and the owner of record of the property | 15 |
| does not enter
an appearance in the action, or, if title to the | 16 |
| property is held by an
Illinois land trust, if neither the | 17 |
| owner of record nor the owner of the
beneficial interest of the | 18 |
| trust enters an appearance, the court
shall declare the | 19 |
| property abandoned.
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| If that determination is made, notice shall be sent by | 21 |
| certified or
registered mail to all persons having an interest | 22 |
| of record in the
property, including tax purchasers and | 23 |
| beneficial owners of any Illinois
land trust having title to | 24 |
| the property, stating that title to the
property will be | 25 |
| transferred to the municipality unless, within 30 days of
the | 26 |
| notice, the owner of record enters an appearance in the action, |
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| or
unless any other person having an interest in the property | 2 |
| files with the
court a request to demolish the dangerous or | 3 |
| unsafe building or to put the
building in safe condition.
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| If the owner of record enters an appearance in the action | 5 |
| within the 30
day period, the court shall vacate its order | 6 |
| declaring the property
abandoned. In that case, the | 7 |
| municipality may amend its complaint in order
to initiate | 8 |
| proceedings under subsection (a).
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| If a request to demolish or repair the building is filed | 10 |
| within the 30
day period, the court shall grant permission to | 11 |
| the requesting party to
demolish the building within 30 days or | 12 |
| to restore the building to safe
condition within 60 days after | 13 |
| the request is granted. An extension of
that period for up to | 14 |
| 60 additional days may be given for good cause. If
more than | 15 |
| one person with an interest in the property files a timely
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| request, preference shall be given to the person with the lien | 17 |
| or other
interest of the highest priority.
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| If the requesting party proves to the court that the | 19 |
| building has been
demolished or put in a safe condition within | 20 |
| the period of time granted by
the court, the court shall issue | 21 |
| a quitclaim judicial deed for the
property to the requesting | 22 |
| party, conveying only the interest of the owner
of record, upon | 23 |
| proof of payment to the municipality of all costs incurred
by | 24 |
| the municipality in connection with the action, including but | 25 |
| not
limited to court costs, attorney's fees, administrative | 26 |
| costs, the
costs, if any, associated with building enclosure or |
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| removal, and receiver's
certificates. The interest in the | 2 |
| property so conveyed shall be subject to
all liens and | 3 |
| encumbrances on the property. In addition, if the interest is
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| conveyed to a person holding a certificate of purchase for the | 5 |
| property
under the Property Tax Code, the conveyance shall
be | 6 |
| subject to the rights of redemption of all persons entitled to | 7 |
| redeem under
that Act, including the original owner of record.
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| If no person with an interest in the property files a | 9 |
| timely request or
if the requesting party fails to demolish the | 10 |
| building or put the building
in safe condition within the time | 11 |
| specified by the court, the municipality
may petition the court | 12 |
| to issue a judicial deed for the property to the
municipality. | 13 |
| A conveyance by judicial deed shall operate to extinguish
all | 14 |
| existing ownership interests in, liens on, and other interest | 15 |
| in the
property, including tax liens, and shall extinguish the | 16 |
| rights and
interests of any and all holders of a bona fide | 17 |
| certificate of purchase of the
property for delinquent taxes. | 18 |
| Any such bona fide certificate of purchase
holder shall be
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| entitled to a sale in error as prescribed under Section 21-310 | 20 |
| of the Property
Tax Code.
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| (e) Each municipality may use the provisions of this | 22 |
| subsection to expedite
the removal
of certain buildings that | 23 |
| are a continuing hazard to the community in which
they are | 24 |
| located.
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| If a residential or commercial building is 3 stories or | 26 |
| less in height as
defined by the
municipality's building code, |
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| and the corporate official designated to be
in charge of | 2 |
| enforcing the municipality's building code determines that the
| 3 |
| building is open and vacant and an immediate and continuing | 4 |
| hazard to the
community in which the building is located, then | 5 |
| the official shall be
authorized to post a notice not less than | 6 |
| 2 feet by 2 feet in size on the
front of the building. The | 7 |
| notice shall be dated as of the date of the
posting and shall | 8 |
| state that unless the building is demolished, repaired,
or | 9 |
| enclosed, and unless any garbage, debris, and other hazardous, | 10 |
| noxious,
or unhealthy substances or materials are removed so | 11 |
| that an immediate and
continuing hazard to the community no | 12 |
| longer exists, then the building may
be demolished, repaired, | 13 |
| or enclosed, or any garbage, debris, and other
hazardous, | 14 |
| noxious, or unhealthy substances or materials may be removed, | 15 |
| by
the municipality.
| 16 |
| Not later than 30 days following the posting of the notice, | 17 |
| the
municipality shall do all of the following:
| 18 |
| (1) Cause to be sent, by certified mail, return receipt | 19 |
| requested,
a Notice to Remediate to all owners of
record of | 20 |
| the property, the beneficial owners of any Illinois land | 21 |
| trust
having title to the property, and all lienholders of | 22 |
| record in the property,
stating the intent of the | 23 |
| municipality to demolish,
repair, or enclose the building | 24 |
| or remove any garbage, debris, or other
hazardous, noxious, | 25 |
| or unhealthy substances or materials if that action is
not | 26 |
| taken by the owner or owners.
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| (2) Cause to be published, in a newspaper published or | 2 |
| circulated in the
municipality where the building is | 3 |
| located, a notice setting forth (i)
the permanent tax index | 4 |
| number and the address of the building, (ii) a
statement | 5 |
| that the property is open and vacant and constitutes an | 6 |
| immediate and
continuing hazard to the community, and (iii) | 7 |
| a statement that the municipality
intends to demolish, | 8 |
| repair, or enclose the building or remove any garbage,
| 9 |
| debris, or other hazardous, noxious, or unhealthy | 10 |
| substances or materials if
the owner or owners or | 11 |
| lienholders of record fail to do so. This notice shall
be | 12 |
| published for 3 consecutive days.
| 13 |
| (3) Cause to be recorded the Notice to Remediate mailed | 14 |
| under paragraph
(1) in
the office of the recorder in the | 15 |
| county in which the real estate is located or
in the
office | 16 |
| of the registrar of titles of the county if the real estate | 17 |
| is
registered under the
Registered Title (Torrens) Act.
| 18 |
| Any person or persons with a current legal or equitable | 19 |
| interest in the
property objecting to the proposed actions of | 20 |
| the corporate authorities may
file his or her objection in an | 21 |
| appropriate form in a court of competent
jurisdiction.
| 22 |
| If the building is not demolished, repaired, or enclosed, | 23 |
| or the garbage,
debris, or other hazardous, noxious, or | 24 |
| unhealthy substances or materials are
not removed, within 30 | 25 |
| days of mailing the notice to the owners of record,
the | 26 |
| beneficial owners of any Illinois land trust having title to |
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| the
property, and all lienholders of record in the property, or
| 2 |
| within 30 days of the last day of publication of the notice, | 3 |
| whichever is
later, the corporate authorities shall have the | 4 |
| power to demolish, repair, or
enclose the building or to remove | 5 |
| any garbage, debris, or other hazardous,
noxious, or unhealthy | 6 |
| substances or materials.
| 7 |
| The municipality may proceed to demolish, repair, or | 8 |
| enclose a building
or remove any garbage, debris, or other | 9 |
| hazardous, noxious, or unhealthy
substances or materials under | 10 |
| this subsection within a 120-day period
following the date of | 11 |
| the mailing of the notice if the appropriate official
| 12 |
| determines that the demolition, repair, enclosure, or removal | 13 |
| of any garbage,
debris, or other hazardous, noxious, or | 14 |
| unhealthy substances or materials is
necessary to remedy the | 15 |
| immediate and continuing hazard. If, however, before
the | 16 |
| municipality proceeds with any of the actions authorized by | 17 |
| this
subsection, any person with a legal or equitable interest | 18 |
| in the property has
sought a hearing under this subsection | 19 |
| before a
court and has served a copy of the complaint on the | 20 |
| chief executive officer of
the municipality, then the | 21 |
| municipality shall not proceed with the demolition,
repair, | 22 |
| enclosure, or removal of garbage, debris, or other substances | 23 |
| until the
court determines that that action is necessary to | 24 |
| remedy the hazard and issues
an order authorizing the | 25 |
| municipality to do so.
If the court dismisses the action for | 26 |
| want of prosecution, the municipality
must send the objector a |
|
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| 1 |
| copy of the dismissal
order and a letter stating that the | 2 |
| demolition, repair, enclosure, or
removal of garbage, debris, | 3 |
| or other substances will proceed unless, within 30
days after | 4 |
| the copy of the order and the letter are mailed, the
objector
| 5 |
| moves to vacate the dismissal and serves a
copy of the
motion | 6 |
| on the chief executive officer of the municipality. | 7 |
| Notwithstanding
any other law to the contrary, if the objector | 8 |
| does not file a motion and give
the required notice, if the | 9 |
| motion is denied by the court, or if the action is
again | 10 |
| dismissed for want of prosecution, then the dismissal is with | 11 |
| prejudice
and the demolition, repair, enclosure, or removal may | 12 |
| proceed forthwith.
| 13 |
| Following the demolition, repair, or enclosure of a | 14 |
| building, or the
removal of garbage, debris, or other | 15 |
| hazardous, noxious, or unhealthy
substances or materials under | 16 |
| this subsection, the municipality may file a
notice of lien | 17 |
| against the real estate for the cost of the demolition,
repair, | 18 |
| enclosure, or removal within 180 days after the repair, | 19 |
| demolition,
enclosure, or removal occurred, for the cost and | 20 |
| expense incurred, in the
office of the recorder in the county | 21 |
| in which the real estate is located or
in the office of the | 22 |
| registrar of titles of the county if the real estate
affected | 23 |
| is registered under the Registered Titles (Torrens) Act; this
| 24 |
| lien has priority over the interests of those parties named in | 25 |
| the
Notice to
Remediate mailed under paragraph (1), but not | 26 |
| over the interests of third party
purchasers
or encumbrancers |
|
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| for value who obtained their interests in the property before
| 2 |
| obtaining
actual or constructive notice of the lien.
The
notice | 3 |
| of lien shall consist of a sworn statement setting forth (i) a
| 4 |
| description of the real estate, such as the address or other | 5 |
| description of
the property, sufficient for its | 6 |
| identification; (ii) the expenses incurred
by the municipality | 7 |
| in undertaking the remedial actions authorized under
this | 8 |
| subsection; (iii) the date or dates the expenses were incurred | 9 |
| by
the municipality; (iv) a statement by the corporate official
| 10 |
| responsible for enforcing the building code that the building | 11 |
| was open and
vacant and constituted an immediate and continuing | 12 |
| hazard
to the community; (v) a statement by the corporate | 13 |
| official that the
required sign was posted on the building, | 14 |
| that notice was sent by certified
mail to the owners of record, | 15 |
| and that notice was published in accordance
with this | 16 |
| subsection; and (vi) a statement as to when and where the | 17 |
| notice
was published. The lien authorized by this subsection | 18 |
| may thereafter be
released or enforced by the municipality as | 19 |
| provided in subsection (a).
| 20 |
| (f) The corporate authorities of each municipality may | 21 |
| remove or cause the
removal of, or otherwise environmentally | 22 |
| remediate hazardous substances and
petroleum products on, in,
| 23 |
| or under any abandoned and unsafe property within the territory | 24 |
| of a
municipality. In addition, where preliminary evidence | 25 |
| indicates the presence
or likely presence of a hazardous | 26 |
| substance or a petroleum product or a release
or a substantial
|
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LRB095 01287 HLH 21289 b |
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| threat of a release of a hazardous substance or a petroleum | 2 |
| product on, in, or
under the property, the
corporate | 3 |
| authorities of the municipality may inspect the property and | 4 |
| test for
the presence or release of hazardous substances and | 5 |
| petroleum products. In any
county having adopted
by referendum | 6 |
| or otherwise a county health department as provided by Division
| 7 |
| 5-25 of the Counties Code or its predecessor, the county board | 8 |
| of that county
may exercise the above-described powers with | 9 |
| regard to property within the
territory of any city, village, | 10 |
| or incorporated town having less than 50,000
population.
| 11 |
| For purposes of this subsection (f):
| 12 |
| (1) "property" or "real estate" means all real | 13 |
| property, whether or
not improved by a structure;
| 14 |
| (2) "abandoned" means;
| 15 |
| (A) the property has been tax delinquent for 2 or | 16 |
| more years;
| 17 |
| (B) the property is unoccupied by persons legally | 18 |
| in possession; and
| 19 |
| (3) "unsafe" means property that presents an actual or | 20 |
| imminent
threat to public health and safety caused by
the | 21 |
| release of hazardous substances; and
| 22 |
| (4) "hazardous substances" means the same as in Section | 23 |
| 3.215 of the
Environmental Protection Act.
| 24 |
| The corporate authorities shall apply to the circuit court | 25 |
| of the county in
which the property is located (i) for an order | 26 |
| allowing the municipality to
enter the property and inspect and |
|
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LRB095 01287 HLH 21289 b |
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| test substances on, in, or under
the property; or (ii) for an | 2 |
| order authorizing the
corporate authorities to take action with | 3 |
| respect to remediation of the
property if conditions on the | 4 |
| property, based on the inspection and testing
authorized in | 5 |
| paragraph (i), indicate the presence of hazardous substances or
| 6 |
| petroleum products.
Remediation shall be deemed
complete for | 7 |
| purposes of
paragraph (ii) above when the property satisfies | 8 |
| Tier
I,
II, or
III
remediation objectives for the property's | 9 |
| most recent usage, as established by
the Environmental | 10 |
| Protection Act, and the rules and regulations promulgated
| 11 |
| thereunder. Where, upon diligent search, the identity or | 12 |
| whereabouts of the
owner or owners of the property, including | 13 |
| the lien holders of record, is not
ascertainable, notice mailed | 14 |
| to the person or persons in whose name the real
estate was last | 15 |
| assessed is sufficient notice under this Section.
| 16 |
| The court shall grant an order authorizing testing under | 17 |
| paragraph (i) above
upon a
showing of preliminary evidence | 18 |
| indicating the presence or likely presence of a
hazardous | 19 |
| substance or a petroleum product or a release of
or a | 20 |
| substantial threat of a release of a hazardous substance or a | 21 |
| petroleum
product on, in, or under
abandoned property. The | 22 |
| preliminary evidence may include, but is not limited
to, | 23 |
| evidence of prior use, visual site inspection, or records of | 24 |
| prior
environmental investigations. The testing authorized by | 25 |
| paragraph (i) above
shall include any type of investigation | 26 |
| which is necessary for an environmental
professional to |
|
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| determine the environmental condition of the property,
| 2 |
| including but not limited to performance of soil borings and | 3 |
| groundwater
monitoring. The court shall grant a remediation | 4 |
| order under paragraph (ii)
above where testing of the property | 5 |
| indicates that it fails to meet the
applicable remediation | 6 |
| objectives. The hearing upon the application to the
circuit | 7 |
| court shall be expedited by the court and shall be given | 8 |
| precedence
over
all other suits.
| 9 |
| The cost of the inspection, testing, or remediation | 10 |
| incurred by the
municipality or by a lien holder of record, | 11 |
| including court costs, attorney's
fees, and other costs related | 12 |
| to the enforcement of this Section,
is a lien on the real | 13 |
| estate; except that in any instances where a
municipality
| 14 |
| incurs costs
of inspection and testing but finds no hazardous | 15 |
| substances or petroleum
products on the property
that present | 16 |
| an actual or imminent
threat to public health and safety, such | 17 |
| costs are not recoverable from the
owners nor are such costs a | 18 |
| lien on the real estate. The lien is superior to
all prior | 19 |
| existing liens and encumbrances, except taxes and any lien | 20 |
| obtained
under subsection (a) or (e), if, within 180 days after | 21 |
| the completion of the
inspection, testing, or remediation, the | 22 |
| municipality or the lien holder of
record who
incurred the cost | 23 |
| and expense shall file a notice of lien for the cost and
| 24 |
| expense incurred in the office of the recorder in the county in | 25 |
| which the real
estate is located or in the office of the | 26 |
| registrar of titles of the county if
the real estate affected |
|
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LRB095 01287 HLH 21289 b |
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| is registered under the Registered Titles (Torrens)
Act.
| 2 |
| The notice must consist of a sworn statement setting out | 3 |
| (i) a description of
the real estate sufficient for its | 4 |
| identification, (ii) the amount of money
representing the cost | 5 |
| and expense incurred, and (iii) the date or dates when
the
cost | 6 |
| and expense was incurred by the municipality or the lien holder | 7 |
| of record.
Upon payment of the lien amount by the owner of or | 8 |
| persons interested in the
property after the notice of lien has | 9 |
| been filed, a release of lien shall be
issued by the | 10 |
| municipality, the person in whose name the lien has been filed,
| 11 |
| or the assignee of the lien, and the release may be filed of | 12 |
| record as in the
case of filing notice of lien.
| 13 |
| The lien may be enforced under subsection (c) or by | 14 |
| foreclosure proceedings
as
in the case of mortgage foreclosures | 15 |
| under Article XV of the Code of Civil
Procedure or mechanics' | 16 |
| lien foreclosures; provided that where the lien is
enforced by | 17 |
| foreclosure under subsection (c) or under either statute, the
| 18 |
| municipality may
not proceed against the other assets of the | 19 |
| owner or owners of the real estate
for any costs that otherwise | 20 |
| would be recoverable under this Section but that
remain | 21 |
| unsatisfied after foreclosure except where such additional | 22 |
| recovery is
authorized by separate environmental laws. An | 23 |
| action to foreclose this lien
may be commenced at any time | 24 |
| after the date of filing of the notice of lien.
The costs of | 25 |
| foreclosure incurred by the municipality, including court | 26 |
| costs,
reasonable attorney's fees, advances to preserve the |
|
|
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LRB095 01287 HLH 21289 b |
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| 1 |
| property, and other costs
related to the enforcement of this | 2 |
| subsection, plus statutory interest, are a
lien on the real | 3 |
| estate.
| 4 |
| All liens arising under this subsection (f) shall be | 5 |
| assignable. The
assignee of the lien shall have the same power | 6 |
| to enforce the lien as the
assigning party, except that the | 7 |
| lien may not be enforced under subsection
(c).
| 8 |
| (g) In any case where a municipality has obtained a lien | 9 |
| under subsection
(a), the municipality may also bring an action | 10 |
| for a money judgment against the
owner or owners of the real | 11 |
| estate in the amount of the lien in the same manner
as provided | 12 |
| for bringing causes of action in Article II of the Code of | 13 |
| Civil
Procedure and, upon obtaining a judgment, file a judgment | 14 |
| lien against all of
the real estate of the owner or owners and | 15 |
| enforce that lien as provided for in
Article XII of the Code of | 16 |
| Civil Procedure.
| 17 |
| (Source: P.A. 91-162, eff. 7-16-99; 91-177, eff. 1-1-00; | 18 |
| 91-357, eff.
7-29-99; 91-542, eff. 1-1-00; 91-561, eff. 1-1-00; | 19 |
| 92-16, eff. 6-28-01;
92-574, eff. 6-26-02; 92-681, eff. 1-1-03; | 20 |
| revised 2-18-03.)
|
|