Full Text of HB4892 095th General Assembly
HB4892 95TH GENERAL ASSEMBLY
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95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008 HB4892
Introduced , by Rep. JoAnn D. Osmond SYNOPSIS AS INTRODUCED: |
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Creates new Act. Creates the Home Buyer's Protection Lien Act.
Provides that a prospective purchaser of a residential dwelling unit in a residential development shall have a lien upon real estate or any interest in that real estate in the amount of his or her deposit advanced to the residential developer under a written instrument to purchase the dwelling unit. Provides that the lien attaches upon the prospective purchaser being otherwise entitled to possession or to receive a substantial benefit under a written instrument for the purchase of a residential dwelling unit and the prospective purchaser recording a notice of lien. Provides requirements for lien contents, serving the lien, filing an action on the lien within 2 years after recording the lien, pleadings, costs, release of lien, and other matters. Provides that prior recorded liens, mortgages, and valid mechanics lien claims have priority over a prospective purchaser's lien.
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A BILL FOR
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HB4892 |
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LRB095 17689 AJO 43764 b |
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| AN ACT concerning civil law.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 1. Short title. This Act may be cited as the Home | 5 |
| Buyer's Protection Lien Act. | 6 |
| Section 5. Definitions. As used in this Act: | 7 |
| "Deposit" means any money held by the residential developer | 8 |
| to secure the performance by the prospective purchaser of his | 9 |
| or her obligations under a purchase agreement. | 10 |
| "Interest in a residential development" shall include, | 11 |
| without limitation, any interest in a land trust as defined in | 12 |
| Section 15-1205 of the Code of Civil Procedure. | 13 |
| "Prospective purchase agreement" means any agreement | 14 |
| whereby a residential developer offers a residential dwelling | 15 |
| unit in a residential development for sale to the public on | 16 |
| terms which permit a deposit payment for the residential | 17 |
| dwelling unit, and with respect to which, delivery is deferred | 18 |
| until completion of payment of the entire purchase price. | 19 |
| "Prospective purchaser" means any person or entity who has | 20 |
| advanced any asset of value to a residential developer as part | 21 |
| of the purchase of a residential unit in a residential | 22 |
| development. | 23 |
| "Real estate" means and includes leaseholds as well as any |
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| other interest or estate in land, whether corporeal, | 2 |
| incorporeal, freehold, or non-freehold, including timeshare | 3 |
| interests. | 4 |
| "Residential developer" means any individual, corporation, | 5 |
| or partnership that constructs or improves a fixed building or | 6 |
| structure for sale or use by another as a residential dwelling | 7 |
| unit that is part of a residential development. | 8 |
| "Residential development" means any real estate located in | 9 |
| Illinois other than (i) commercial real estate or (ii) real | 10 |
| estate classified as farmland for assessment purposes under the | 11 |
| Property Tax Code, that has a use for residential purposes. A | 12 |
| residential development shall include single family | 13 |
| residential units such as condominiums, townhouses, or homes in | 14 |
| a subdivision when sold, leased, or otherwise conveyed on a | 15 |
| unit by unit basis even though these units may be part of a | 16 |
| larger building or parcel of real estate containing several | 17 |
| residential units and also means a house, building, or other | 18 |
| structure or property that is suitable or capable of being used | 19 |
| for residential purposes that has been constructed or improved, | 20 |
| or will be constructed or improved, to provide residential | 21 |
| dwelling units.
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| Section 10. Prospective purchaser's lien.
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| (a) Any prospective purchaser shall have a lien, upon real | 24 |
| estate or any interest in that real estate, in the amount of | 25 |
| the deposit that the prospective purchaser has advanced to a |
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| residential developer as part of the purchase of a residential | 2 |
| unit in a residential development: | 3 |
| (1) under a written instrument signed by the | 4 |
| residential developer of a residential development or the | 5 |
| residential developer's duly authorized agent; or | 6 |
| (2) under a written instrument signed by a prospective | 7 |
| purchaser or his or her duly authorized agent as to the | 8 |
| purchase or other conveyance to the prospective purchaser | 9 |
| of an interest in the residential development. | 10 |
| (b) The lien under this Act shall attach to the residential | 11 |
| development, or any interest in the residential development, | 12 |
| upon: | 13 |
| (1) the prospective purchaser being otherwise entitled | 14 |
| to possession or to receive some other substantial benefit | 15 |
| under a written instrument for the purchase of a | 16 |
| residential dwelling unit signed by the residential | 17 |
| developer or his or her respective duly authorized agent, | 18 |
| as applicable; and | 19 |
| (2) the prospective purchaser recording a notice of | 20 |
| lien in the recorder's office, or the office of the | 21 |
| registrar of titles, of the county in which the residential | 22 |
| development is located prior to the actual conveyance or | 23 |
| transfer of the residential development against which the | 24 |
| prospective purchaser is claiming a lien. The lien shall | 25 |
| attach as of the date of the recording of the notice of | 26 |
| lien and does not relate back to the date of the written |
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| agreement. | 2 |
| (c) The prospective purchaser shall within 10 days of | 3 |
| recording his or her notice of lien mail a copy of the notice | 4 |
| of lien to the residential developer of record of the | 5 |
| residential development by registered or certified mail, with | 6 |
| return receipt requested, or personally serve a copy of the | 7 |
| notice of lien on the residential developer of record or his or | 8 |
| her agent. Mailing of the copy of the notice of lien is
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| effective if mailed to the residential developer at the address | 10 |
| of the residential development that is the subject of the | 11 |
| notice of lien. Mailing of the copy of the notice of claim for | 12 |
| lien is effective when deposited in the United States mailbox | 13 |
| with postage prepaid. The prospective purchaser's lien shall be | 14 |
| unenforceable if mailing of the copy of the notice of lien | 15 |
| recording does not occur at the time and in the manner required | 16 |
| by this Act. | 17 |
| (d) A prospective purchaser may bring suit to enforce a | 18 |
| lien in the circuit court in the county where the property is | 19 |
| located by filing a complaint and sworn affidavit that the lien | 20 |
| has been recorded. | 21 |
| The person claiming a lien shall, within 2 years after | 22 |
| recording the lien, commence proceedings by filing a complaint. | 23 |
| Failure to commence proceedings within 2 years after recording | 24 |
| the lien shall extinguish the lien. No subsequent notice of | 25 |
| lien may be given for the same claim nor may that claim be | 26 |
| asserted in any proceeding under this Act. |
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| A complaint under this Section shall contain a brief | 2 |
| statement of the contract or agreement on which the lien is | 3 |
| founded, the date when the contract or agreement was made, the | 4 |
| amount of the deposit, a description of the property that is | 5 |
| subject to the lien, and other facts necessary for a full | 6 |
| understanding of the rights of the parties. The plaintiff shall | 7 |
| make all interested parties, of whose interest the plaintiff is | 8 |
| notified or has knowledge, defendants to the action, and shall | 9 |
| issue summons and provide service as in other civil actions. | 10 |
| When any defendant resides or has gone out of the State, or on | 11 |
| inquiry cannot be found, or is concealed within this State so | 12 |
| that process cannot be served on that defendant, the plaintiff | 13 |
| shall cause a notice to be given to that defendant, or cause a | 14 |
| copy of the complaint to be served upon that defendant, in the | 15 |
| manner and upon the same conditions as in other civil actions. | 16 |
| Failure of the plaintiff to provide proper summons or notice | 17 |
| shall be grounds for judgment against the plaintiff with | 18 |
| prejudice. All liens claimed under this Act shall be foreclosed | 19 |
| as provided for in the Illinois Mortgage Foreclosure Law. | 20 |
| (e) The lien notice shall state the name of the claimant, | 21 |
| the name of the residential developer, a description of the | 22 |
| property upon which the lien is being claimed, and the amount | 23 |
| of the deposit for which the lien is claimed. The notice of | 24 |
| lien shall recite that the information contained in the notice | 25 |
| is true and accurate to the knowledge of the signator. The | 26 |
| notice of lien shall be signed by the prospective purchaser or |
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| by a person authorized to sign on behalf of the prospective | 2 |
| purchaser and shall be verified. | 3 |
| (f) Whenever a claim for lien has been filed with the | 4 |
| county recorder or registrar of titles and a condition occurs | 5 |
| that would preclude the prospective purchaser from receiving | 6 |
| back the deposit under the terms of the prospective purchaser's | 7 |
| written agreement, the prospective purchaser shall provide to | 8 |
| the residential developer of record, within 10 days following | 9 |
| demand by the residential developer of record, a written | 10 |
| release or satisfaction of the lien. | 11 |
| (g) Upon written demand of the residential developer, | 12 |
| lienee, or other authorized agent, served on the person | 13 |
| claiming the lien, requiring suit to be commenced to enforce | 14 |
| the lien or answer to be filed in a pending suit, a suit shall | 15 |
| be commenced or answer filed within 30 days thereafter, or the | 16 |
| lien shall be extinguished. Service may be by registered or | 17 |
| certified mail, return receipt requested, or by personal | 18 |
| service. | 19 |
| (h) Whenever a claim for lien has been filed with the | 20 |
| county recorder or registrar of titles and is paid, or where | 21 |
| there is failure to institute a suit to enforce the lien within | 22 |
| the time provided by this Act, the prospective purchaser shall | 23 |
| acknowledge satisfaction or release of the lien, in writing, on | 24 |
| written demand of the residential developer within 5 days after | 25 |
| payment or expiration of the time in which to file the lien. | 26 |
| (i) The cost of proceedings asserting or defending a |
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LRB095 17689 AJO 43764 b |
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| prospective purchaser's claim of lien, including reasonable | 2 |
| attorney's fees, costs, and prejudgment interest due to the | 3 |
| prevailing party, shall be borne by the nonprevailing party or | 4 |
| parties. When more than one party is responsible for costs, | 5 |
| fees, and prejudgment interest, the costs, fees, and | 6 |
| prejudgment interest shall be equitably apportioned by the | 7 |
| court among those responsible parties.
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| Section 15. Priority. Prior recorded liens and mortgages | 9 |
| shall have priority over a prospective purchaser's lien. A | 10 |
| prior recorded lien shall include, without limitation: (i) a | 11 |
| valid mechanics lien claim that is recorded subsequent to the | 12 |
| prospective purchaser's notice of lien but which relates back | 13 |
| to a date prior to the recording date of the prospective | 14 |
| purchaser's notice of lien; and (ii) prior recorded liens | 15 |
| securing revolving credit and future advances of construction | 16 |
| loans as described in Section 15-1302 of the Code of Civil | 17 |
| Procedure.
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