Full Text of HB5829 98th General Assembly
HB5829 98TH GENERAL ASSEMBLY |
| | 98TH GENERAL ASSEMBLY
State of Illinois
2013 and 2014 HB5829 Introduced , by Rep. Donald L. Moffitt SYNOPSIS AS INTRODUCED: |
| 65 ILCS 5/11-31-1 | from Ch. 24, par. 11-31-1 |
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Amends the Illinois Municipal Code. Provides that the corporate authorities may petition the circuit court to have property declared abandoned if the corporate authorities of the municipality have abated a code violation found on the property more than 3 times within a 12 month period.
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| | A BILL FOR |
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| 1 | | AN ACT concerning local government.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Municipal Code is amended by | 5 | | changing Section 11-31-1 as follows:
| 6 | | (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
| 7 | | Sec. 11-31-1. Demolition, repair, enclosure, or | 8 | | remediation.
| 9 | | (a) 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
| 17 | | 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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| 1 | | 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
| 13 | | 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.
| 18 | | 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.
| 23 | | 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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| 1 | | 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
| 8 | | 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.
| 13 | | 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
| 19 | | 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
| 26 | | mortgage foreclosures under Article XV of the Code of Civil |
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| 1 | | 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,
| 6 | | 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.
| 10 | | 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).
| 14 | | 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
| 19 | | petition under that Act in a proceeding brought under this | 20 | | subsection.
| 21 | | (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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| 1 | | 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
| 7 | | 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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| 1 | | 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.
| 12 | | 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
| 18 | | 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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| 1 | | 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
| 6 | | 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
| 26 | | real estate.
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| 1 | | 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).
| 5 | | (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.
| 9 | | 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
| 20 | | 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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| 1 | | (b), or
(f).
| 2 | | 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.
| 8 | | 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
| 14 | | 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.
| 17 | | (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:
| 21 | | (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;
| 24 | | (2) the property is unoccupied by persons legally in | 25 | | possession; and
| 26 | | (3) the property contains a dangerous or unsafe |
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| 1 | | building for reasons specified in the petition ; and .
| 2 | | (4) the property is not being maintained, as evidenced | 3 | | by the fact that the corporate authorities of the | 4 | | municipality have abated a code violation on the property, | 5 | | as defined under Division 31.1 of this Article, more than 3 | 6 | | times within a 12 month period. | 7 | | All persons having an interest of record in the property, | 8 | | including tax
purchasers and beneficial owners of any Illinois | 9 | | land trust having title to
the property, shall be named as | 10 | | defendants in the petition and shall be
served with process. In | 11 | | addition, service shall be had under Section
2-206 of the Code | 12 | | of Civil Procedure as in other cases affecting property.
| 13 | | The municipality, however, may proceed under this | 14 | | subsection in a
proceeding brought under subsection (a) or (b). | 15 | | Notice of the petition
shall be served in person or by | 16 | | certified or registered mail on all persons who were
served | 17 | | notice under subsection (a) or (b).
| 18 | | If the municipality proves that the conditions described in | 19 | | this
subsection exist and (i) the owner of record of the | 20 | | property does not enter
an appearance in the action, or, if | 21 | | title to the property is held by an
Illinois land trust, if | 22 | | neither the owner of record nor the owner of the
beneficial | 23 | | interest of the trust enters an appearance, or (ii) if the | 24 | | owner of record or the beneficiary of a land trust, if title to | 25 | | the property is held by an Illinois land trust, enters an | 26 | | appearance and specifically waives his or her rights under this |
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| 1 | | subsection (d), the court
shall declare the property abandoned. | 2 | | Notwithstanding any waiver, the municipality may move to | 3 | | dismiss its petition at any time. In addition, any waiver in a | 4 | | proceeding under this subsection (d) does not serve as a waiver | 5 | | for any other proceeding under law or equity.
| 6 | | If that determination is made, notice shall be sent in | 7 | | person or by certified or
registered mail to all persons having | 8 | | an interest of record in the
property, including tax purchasers | 9 | | and beneficial owners of any Illinois
land trust having title | 10 | | to the property, stating that title to the
property will be | 11 | | transferred to the municipality unless, within 30 days of
the | 12 | | notice, the owner of record or any other person having an | 13 | | interest in the property files with the
court a request to | 14 | | demolish the dangerous or unsafe building or to put the
| 15 | | building in safe condition, or unless the owner of record | 16 | | enters an appearance and proves that the owner does not intend | 17 | | to abandon the property.
| 18 | | If the owner of record enters an appearance in the action | 19 | | within the 30
day period, but does not at that time file with | 20 | | the court a request to demolish the dangerous or unsafe | 21 | | building or to put the building in safe condition, or | 22 | | specifically waive his or her rights under this subsection (d), | 23 | | the court shall vacate its order declaring the property
| 24 | | abandoned if it determines that the owner of record does not | 25 | | intend to abandon the property. In that case, the municipality | 26 | | may amend its complaint in order
to initiate proceedings under |
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| 1 | | subsection (a), or it may request that the court order the | 2 | | owner to demolish the building or repair the dangerous or | 3 | | unsafe conditions of the building alleged in the petition or | 4 | | seek the appointment of a receiver or other equitable relief to | 5 | | correct the conditions at the property. The powers and rights | 6 | | of a receiver appointed under this subsection (d) shall include | 7 | | all of the powers and rights of a receiver appointed under | 8 | | Section 11-31-2 of this Code.
| 9 | | 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
| 16 | | request, preference shall be given to the owner of record if | 17 | | the owner filed a request or, if the owner did not, the person | 18 | | with the lien or other
interest of the highest priority.
| 19 | | If the requesting party (other than the owner of record) | 20 | | proves to the court that the building has been
demolished or | 21 | | put in a safe condition in accordance with the local safety | 22 | | codes within the period of time granted by
the court, the court | 23 | | shall issue a quitclaim judicial deed for the
property to the | 24 | | requesting party, conveying only the interest of the owner
of | 25 | | record, upon proof of payment to the municipality of all costs | 26 | | incurred
by the municipality in connection with the action, |
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| 1 | | including but not
limited to court costs, attorney's fees, | 2 | | administrative costs, the
costs, if any, associated with | 3 | | building enclosure or removal, and receiver's
certificates. | 4 | | The interest in the property so conveyed shall be subject to
| 5 | | all liens and encumbrances on the property. In addition, if the | 6 | | interest is
conveyed to a person holding a certificate of | 7 | | purchase for the property
under the Property Tax Code, the | 8 | | conveyance shall
be subject to the rights of redemption of all | 9 | | persons entitled to redeem under
that Act, including the | 10 | | original owner of record. If the requesting party is the owner | 11 | | of record and proves to the court that the building has been | 12 | | demolished or put in a safe condition in accordance with the | 13 | | local safety codes within the period of time granted by the | 14 | | court, the court shall dismiss the proceeding under this | 15 | | subsection (d).
| 16 | | If the owner of record has not entered an appearance and | 17 | | proven that the owner did not intend to abandon the property, | 18 | | and if no person with an interest in the property files a | 19 | | timely request or
if the requesting party fails to demolish the | 20 | | building or put the building
in safe condition within the time | 21 | | specified by the court, the municipality
may petition the court | 22 | | to issue a judicial deed for the property to the
municipality. | 23 | | A conveyance by judicial deed shall operate to extinguish
all | 24 | | existing ownership interests in, liens on, and other interest | 25 | | in the
property, including tax liens, and shall extinguish the | 26 | | rights and
interests of any and all holders of a bona fide |
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| 1 | | certificate of purchase of the
property for delinquent taxes. | 2 | | Any such bona fide certificate of purchase
holder shall be
| 3 | | entitled to a sale in error as prescribed under Section 21-310 | 4 | | of the Property
Tax Code.
| 5 | | (e) Each municipality may use the provisions of this | 6 | | subsection to expedite
the removal
of certain buildings that | 7 | | are a continuing hazard to the community in which
they are | 8 | | located.
| 9 | | If a residential or commercial building is 3 stories or | 10 | | less in height as
defined by the
municipality's building code, | 11 | | and the corporate official designated to be
in charge of | 12 | | enforcing the municipality's building code determines that the
| 13 | | building is open and vacant and an immediate and continuing | 14 | | hazard to the
community in which the building is located, then | 15 | | the official shall be
authorized to post a notice not less than | 16 | | 2 feet by 2 feet in size on the
front of the building. The | 17 | | notice shall be dated as of the date of the
posting and shall | 18 | | state that unless the building is demolished, repaired,
or | 19 | | enclosed, and unless any garbage, debris, and other hazardous, | 20 | | noxious,
or unhealthy substances or materials are removed so | 21 | | that an immediate and
continuing hazard to the community no | 22 | | longer exists, then the building may
be demolished, repaired, | 23 | | or enclosed, or any garbage, debris, and other
hazardous, | 24 | | noxious, or unhealthy substances or materials may be removed, | 25 | | by
the municipality.
| 26 | | Not later than 30 days following the posting of the notice, |
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| 1 | | the
municipality shall do all of the following:
| 2 | | (1) Cause to be sent, by certified mail, return receipt | 3 | | requested,
a Notice to Remediate to all owners of
record of | 4 | | the property, the beneficial owners of any Illinois land | 5 | | trust
having title to the property, and all lienholders of | 6 | | record in the property,
stating the intent of the | 7 | | municipality to demolish,
repair, or enclose the building | 8 | | or remove any garbage, debris, or other
hazardous, noxious, | 9 | | or unhealthy substances or materials if that action is
not | 10 | | taken by the owner or owners.
| 11 | | (2) Cause to be published, in a newspaper published or | 12 | | circulated in the
municipality where the building is | 13 | | located, a notice setting forth (i)
the permanent tax index | 14 | | number and the address of the building, (ii) a
statement | 15 | | that the property is open and vacant and constitutes an | 16 | | immediate and
continuing hazard to the community, and (iii) | 17 | | a statement that the municipality
intends to demolish, | 18 | | repair, or enclose the building or remove any garbage,
| 19 | | debris, or other hazardous, noxious, or unhealthy | 20 | | substances or materials if
the owner or owners or | 21 | | lienholders of record fail to do so. This notice shall
be | 22 | | published for 3 consecutive days.
| 23 | | (3) Cause to be recorded the Notice to Remediate mailed | 24 | | under paragraph
(1) in
the office of the recorder in the | 25 | | county in which the real estate is located or
in the
office | 26 | | of the registrar of titles of the county if the real estate |
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| 1 | | is
registered under the
Registered Title (Torrens) Act.
| 2 | | Any person or persons with a current legal or equitable | 3 | | interest in the
property objecting to the proposed actions of | 4 | | the corporate authorities may
file his or her objection in an | 5 | | appropriate form in a court of competent
jurisdiction.
| 6 | | If the building is not demolished, repaired, or enclosed, | 7 | | or the garbage,
debris, or other hazardous, noxious, or | 8 | | unhealthy substances or materials are
not removed, within 30 | 9 | | days of mailing the notice to the owners of record,
the | 10 | | beneficial owners of any Illinois land trust having title to | 11 | | the
property, and all lienholders of record in the property, or
| 12 | | within 30 days of the last day of publication of the notice, | 13 | | whichever is
later, the corporate authorities shall have the | 14 | | power to demolish, repair, or
enclose the building or to remove | 15 | | any garbage, debris, or other hazardous,
noxious, or unhealthy | 16 | | substances or materials.
| 17 | | The municipality may proceed to demolish, repair, or | 18 | | enclose a building
or remove any garbage, debris, or other | 19 | | hazardous, noxious, or unhealthy
substances or materials under | 20 | | this subsection within a 120-day period
following the date of | 21 | | the mailing of the notice if the appropriate official
| 22 | | determines that the demolition, repair, enclosure, or removal | 23 | | of any garbage,
debris, or other hazardous, noxious, or | 24 | | unhealthy substances or materials is
necessary to remedy the | 25 | | immediate and continuing hazard. If, however, before
the | 26 | | municipality proceeds with any of the actions authorized by |
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| 1 | | this
subsection, any person with a legal or equitable interest | 2 | | in the property has
sought a hearing under this subsection | 3 | | before a
court and has served a copy of the complaint on the | 4 | | chief executive officer of
the municipality, then the | 5 | | municipality shall not proceed with the demolition,
repair, | 6 | | enclosure, or removal of garbage, debris, or other substances | 7 | | until the
court determines that that action is necessary to | 8 | | remedy the hazard and issues
an order authorizing the | 9 | | municipality to do so.
If the court dismisses the action for | 10 | | want of prosecution, the municipality
must send the objector a | 11 | | copy of the dismissal
order and a letter stating that the | 12 | | demolition, repair, enclosure, or
removal of garbage, debris, | 13 | | or other substances will proceed unless, within 30
days after | 14 | | the copy of the order and the letter are mailed, the
objector
| 15 | | moves to vacate the dismissal and serves a
copy of the
motion | 16 | | on the chief executive officer of the municipality. | 17 | | Notwithstanding
any other law to the contrary, if the objector | 18 | | does not file a motion and give
the required notice, if the | 19 | | motion is denied by the court, or if the action is
again | 20 | | dismissed for want of prosecution, then the dismissal is with | 21 | | prejudice
and the demolition, repair, enclosure, or removal may | 22 | | proceed forthwith.
| 23 | | Following the demolition, repair, or enclosure of a | 24 | | building, or the
removal of garbage, debris, or other | 25 | | hazardous, noxious, or unhealthy
substances or materials under | 26 | | this subsection, the municipality may file a
notice of lien |
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| 1 | | against the real estate for the cost of the demolition,
repair, | 2 | | enclosure, or removal within 180 days after the repair, | 3 | | demolition,
enclosure, or removal occurred, for the cost and | 4 | | expense incurred, in the
office of the recorder in the county | 5 | | in which the real estate is located or
in the office of the | 6 | | registrar of titles of the county if the real estate
affected | 7 | | is registered under the Registered Titles (Torrens) Act; this
| 8 | | lien has priority over the interests of those parties named in | 9 | | the
Notice to
Remediate mailed under paragraph (1), but not | 10 | | over the interests of third party
purchasers
or encumbrancers | 11 | | for value who obtained their interests in the property before
| 12 | | obtaining
actual or constructive notice of the lien.
The
notice | 13 | | of lien shall consist of a sworn statement setting forth (i) a
| 14 | | description of the real estate, such as the address or other | 15 | | description of
the property, sufficient for its | 16 | | identification; (ii) the expenses incurred
by the municipality | 17 | | in undertaking the remedial actions authorized under
this | 18 | | subsection; (iii) the date or dates the expenses were incurred | 19 | | by
the municipality; (iv) a statement by the corporate official
| 20 | | responsible for enforcing the building code that the building | 21 | | was open and
vacant and constituted an immediate and continuing | 22 | | hazard
to the community; (v) a statement by the corporate | 23 | | official that the
required sign was posted on the building, | 24 | | that notice was sent by certified
mail to the owners of record, | 25 | | and that notice was published in accordance
with this | 26 | | subsection; and (vi) a statement as to when and where the |
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| 1 | | notice
was published. The lien authorized by this subsection | 2 | | may thereafter be
released or enforced by the municipality as | 3 | | provided in subsection (a).
| 4 | | (f) The corporate authorities of each municipality may | 5 | | remove or cause the
removal of, or otherwise environmentally | 6 | | remediate hazardous substances and
petroleum products on, in,
| 7 | | or under any abandoned and unsafe property within the territory | 8 | | of a
municipality. In addition, where preliminary evidence | 9 | | indicates the presence
or likely presence of a hazardous | 10 | | substance or a petroleum product or a release
or a substantial
| 11 | | threat of a release of a hazardous substance or a petroleum | 12 | | product on, in, or
under the property, the
corporate | 13 | | authorities of the municipality may inspect the property and | 14 | | test for
the presence or release of hazardous substances and | 15 | | petroleum products. In any
county having adopted
by referendum | 16 | | or otherwise a county health department as provided by Division
| 17 | | 5-25 of the Counties Code or its predecessor, the county board | 18 | | of that county
may exercise the above-described powers with | 19 | | regard to property within the
territory of any city, village, | 20 | | or incorporated town having less than 50,000
population.
| 21 | | For purposes of this subsection (f):
| 22 | | (1) "property" or "real estate" means all real | 23 | | property, whether or
not improved by a structure;
| 24 | | (2) "abandoned" means;
| 25 | | (A) the property has been tax delinquent for 2 or | 26 | | more years;
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| 1 | | (B) the property is unoccupied by persons legally | 2 | | in possession; and
| 3 | | (3) "unsafe" means property that presents an actual or | 4 | | imminent
threat to public health and safety caused by
the | 5 | | release of hazardous substances; and
| 6 | | (4) "hazardous substances" means the same as in Section | 7 | | 3.215 of the
Environmental Protection Act.
| 8 | | The corporate authorities shall apply to the circuit court | 9 | | of the county in
which the property is located (i) for an order | 10 | | allowing the municipality to
enter the property and inspect and | 11 | | test substances on, in, or under
the property; or (ii) for an | 12 | | order authorizing the
corporate authorities to take action with | 13 | | respect to remediation of the
property if conditions on the | 14 | | property, based on the inspection and testing
authorized in | 15 | | paragraph (i), indicate the presence of hazardous substances or
| 16 | | petroleum products.
Remediation shall be deemed
complete for | 17 | | purposes of
paragraph (ii) above when the property satisfies | 18 | | Tier
I,
II, or
III
remediation objectives for the property's | 19 | | most recent usage, as established by
the Environmental | 20 | | Protection Act, and the rules and regulations promulgated
| 21 | | thereunder. Where, upon diligent search, the identity or | 22 | | whereabouts of the
owner or owners of the property, including | 23 | | the lien holders of record, is not
ascertainable, notice mailed | 24 | | to the person or persons in whose name the real
estate was last | 25 | | assessed is sufficient notice under this Section.
| 26 | | The court shall grant an order authorizing testing under |
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| 1 | | paragraph (i) above
upon a
showing of preliminary evidence | 2 | | indicating the presence or likely presence of a
hazardous | 3 | | substance or a petroleum product or a release of
or a | 4 | | substantial threat of a release of a hazardous substance or a | 5 | | petroleum
product on, in, or under
abandoned property. The | 6 | | preliminary evidence may include, but is not limited
to, | 7 | | evidence of prior use, visual site inspection, or records of | 8 | | prior
environmental investigations. The testing authorized by | 9 | | paragraph (i) above
shall include any type of investigation | 10 | | which is necessary for an environmental
professional to | 11 | | determine the environmental condition of the property,
| 12 | | including but not limited to performance of soil borings and | 13 | | groundwater
monitoring. The court shall grant a remediation | 14 | | order under paragraph (ii)
above where testing of the property | 15 | | indicates that it fails to meet the
applicable remediation | 16 | | objectives. The hearing upon the application to the
circuit | 17 | | court shall be expedited by the court and shall be given | 18 | | precedence
over
all other suits.
| 19 | | The cost of the inspection, testing, or remediation | 20 | | incurred by the
municipality or by a lien holder of record, | 21 | | including court costs, attorney's
fees, and other costs related | 22 | | to the enforcement of this Section,
is a lien on the real | 23 | | estate; except that in any instances where a
municipality
| 24 | | incurs costs
of inspection and testing but finds no hazardous | 25 | | substances or petroleum
products on the property
that present | 26 | | an actual or imminent
threat to public health and safety, such |
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| 1 | | costs are not recoverable from the
owners nor are such costs a | 2 | | lien on the real estate. The lien is superior to
all prior | 3 | | existing liens and encumbrances, except taxes and any lien | 4 | | obtained
under subsection (a) or (e), if, within 180 days after | 5 | | the completion of the
inspection, testing, or remediation, the | 6 | | municipality or the lien holder of
record who
incurred the cost | 7 | | and expense shall file a notice of lien for the cost and
| 8 | | expense incurred in the office of the recorder in the county in | 9 | | which the real
estate is located or in the office of the | 10 | | registrar of titles of the county if
the real estate affected | 11 | | is registered under the Registered Titles (Torrens)
Act.
| 12 | | The notice must consist of a sworn statement setting out | 13 | | (i) a description of
the real estate sufficient for its | 14 | | identification, (ii) the amount of money
representing the cost | 15 | | and expense incurred, and (iii) the date or dates when
the
cost | 16 | | and expense was incurred by the municipality or the lien holder | 17 | | of record.
Upon payment of the lien amount by the owner of or | 18 | | persons interested in the
property after the notice of lien has | 19 | | been filed, a release of lien shall be
issued by the | 20 | | municipality, the person in whose name the lien has been filed,
| 21 | | or the assignee of the lien, and the release may be filed of | 22 | | record as in the
case of filing notice of lien.
| 23 | | The lien may be enforced under subsection (c) or by | 24 | | foreclosure proceedings
as
in the case of mortgage foreclosures | 25 | | under Article XV of the Code of Civil
Procedure or mechanics' | 26 | | lien foreclosures; provided that where the lien is
enforced by |
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| 1 | | foreclosure under subsection (c) or under either statute, the
| 2 | | municipality may
not proceed against the other assets of the | 3 | | owner or owners of the real estate
for any costs that otherwise | 4 | | would be recoverable under this Section but that
remain | 5 | | unsatisfied after foreclosure except where such additional | 6 | | recovery is
authorized by separate environmental laws. An | 7 | | action to foreclose this lien
may be commenced at any time | 8 | | after the date of filing of the notice of lien.
The costs of | 9 | | foreclosure incurred by the municipality, including court | 10 | | costs,
reasonable attorney's fees, advances to preserve the | 11 | | property, and other costs
related to the enforcement of this | 12 | | subsection, plus statutory interest, are a
lien on the real | 13 | | estate.
| 14 | | All liens arising under this subsection (f) shall be | 15 | | assignable. The
assignee of the lien shall have the same power | 16 | | to enforce the lien as the
assigning party, except that the | 17 | | lien may not be enforced under subsection
(c).
| 18 | | (g) In any case where a municipality has obtained a lien | 19 | | under subsection
(a), the municipality may also bring an action | 20 | | for a money judgment against the
owner or owners of the real | 21 | | estate in the amount of the lien in the same manner
as provided | 22 | | for bringing causes of action in Article II of the Code of | 23 | | Civil
Procedure and, upon obtaining a judgment, file a judgment | 24 | | lien against all of
the real estate of the owner or owners and | 25 | | enforce that lien as provided for in
Article XII of the Code of | 26 | | Civil Procedure.
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| 1 | | (Source: P.A. 95-331, eff. 8-21-07; 95-931, eff. 1-1-09.)
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