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90_SB1538
35 ILCS 200/21-105
35 ILCS 200/21-310
65 ILCS 5/11-31-1 from Ch. 24, par. 11-31-1
Amends the Property Tax Code and the Illinois Municipal
Code. Provides that when a municipality acquires abandoned
property, the rights of a holder of a certificate of purchase
are limited to a sale in error.
LRB9009345MWpc
LRB9009345MWpc
1 AN ACT regarding liens, amending named Acts.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 5. The Property Tax Code is amended by changing
5 Sections 21-105 and 21-310 as follows:
6 (35 ILCS 200/21-105)
7 Sec. 21-105. Liability of owner; rights of tax
8 purchaser. Nothing in Sections 21-95 and 21-100 shall relieve
9 any owner liable for delinquent property taxes under this
10 Code from the payment of any delinquent taxes or liens which
11 have become null and void under those Sections.
12 Sections 21-95 and 21-100 shall not adversely affect the
13 rights or interests of the holder of any bona fide
14 certificate of purchase of the property for delinquent taxes.
15 However, upon acquisition of property by a governmental unit
16 as set forth in Section 21-95, the rights and interests of
17 the holder of any bona fide certificate of purchase of the
18 property for delinquent taxes shall be limited to a sale in
19 error and a refund as provided under Section 21-310.
20 (Source: P.A. 86-949; 86-1158; 88-455.)
21 (35 ILCS 200/21-310)
22 Sec. 21-310. Sales in error.
23 (a) When, upon application of the county collector, tax
24 purchaser, or a municipality which owns or has owned the
25 property ordered sold, it appears to the satisfaction of the
26 court which ordered the property sold that any of the
27 following subsections are applicable, the court shall declare
28 the sale to be a sale in error:
29 (1) the property was not subject to taxation,
30 (2) the taxes or special assessments had been paid
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1 prior to the sale of the property,
2 (3) there is a double assessment,
3 (4) the description is void for uncertainty,
4 (5) the assessor, chief county assessment officer,
5 board of review, or board of appeals has made an error
6 (other than an error of judgment as to the value of any
7 property), or
8 (6) prior to the tax sale a voluntary or
9 involuntary petition has been filed by or against the
10 legal or beneficial owner of the property requesting
11 relief under the provisions of 11 U.S.C. Chapter 7, 11,
12 12 or 13, or.
13 (7) a municipality has acquired the property (i)
14 through the foreclosure of a lien authorized under
15 Section 11-31-1 of the Illinois Municipal Code or through
16 a judicial deed issued under that Section or (ii) through
17 foreclosure of a receivership certificate lien.
18 (b) When, upon application of the tax purchaser or his
19 or her assignee only, it appears to the satisfaction of the
20 court which ordered the property sold that any of the
21 following subsections are applicable, the court shall declare
22 a sale in error:
23 (1) A voluntary or involuntary petition under the
24 provisions of U.S.C. Chapter 7, 11, 12, or 13 has been
25 filed subsequent to the tax sale and prior to the
26 issuance of the tax deed.
27 (2) The improvements upon the property sold have
28 been substantially destroyed or rendered uninhabitable or
29 otherwise unfit for occupancy subsequent to the tax sale
30 and prior to the issuance of the tax deed.
31 (3) There is an interest held by the United States
32 in the property sold which could not be extinguished by
33 the tax deed.
34 (4) The real property contains a hazardous
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1 substance, hazardous waste, or underground storage tank
2 that would require cleanup or other removal under any
3 federal, State, or local law, ordinance, or regulation,
4 only if the tax purchaser purchased the property without
5 actual knowledge of the hazardous substance, hazardous
6 waste, or underground storage tank. This paragraph (4)
7 applies only to tax purchases occurring after January 1,
8 1990 and if the tax purchaser or his or her assignee has
9 made application for a sale in error at any time before
10 the issuance of a tax deed.
11 If a sale is declared to be a sale in error, the county
12 clerk shall make entry in the tax judgment, sale, redemption
13 and forfeiture record, that the property was erroneously
14 sold, and the county collector shall, on demand of the owner
15 of the certificate of purchase, refund the amount paid, pay
16 any interest and costs as may be ordered under Sections
17 21-315 through 21-335, and cancel the certificate so far as
18 it relates to the property. The county collector shall deduct
19 from the accounts of the appropriate taxing bodies their pro
20 rata amounts paid.
21 (Source: P.A. 88-455; 88-676, eff. 12-14-94.)
22 Section 10. The Illinois Municipal Code is amended by
23 changing Section 11-31-1 as follows:
24 (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
25 Sec. 11-31-1. Demolition, repair, enclosure, or
26 remediation.
27 (a) The corporate authorities of each municipality may
28 demolish, repair, or enclose or cause the demolition, repair,
29 or enclosure of dangerous and unsafe buildings or uncompleted
30 and abandoned buildings within the territory of the
31 municipality and may remove or cause the removal of garbage,
32 debris, and other hazardous, noxious, or unhealthy substances
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1 or materials from those buildings. In any county having
2 adopted by referendum or otherwise a county health department
3 as provided by Division 5-25 of the Counties Code or its
4 predecessor, the county board of that county may exercise
5 those powers with regard to dangerous and unsafe buildings or
6 uncompleted and abandoned buildings within the territory of
7 any city, village, or incorporated town having less than
8 50,000 population.
9 The corporate authorities shall apply to the circuit
10 court of the county in which the building is located (i) for
11 an order authorizing action to be taken with respect to a
12 building if the owner or owners of the building, including
13 the lien holders of record, after at least 15 days' written
14 notice by mail so to do, have failed to put the building in a
15 safe condition or to demolish it or (ii) for an order
16 requiring the owner or owners of record to demolish, repair,
17 or enclose the building or to remove garbage, debris, and
18 other hazardous, noxious, or unhealthy substances or
19 materials from the building. It is not a defense to the
20 cause of action that the building is boarded up or otherwise
21 enclosed, although the court may order the defendant to have
22 the building boarded up or otherwise enclosed. Where, upon
23 diligent search, the identity or whereabouts of the owner or
24 owners of the building, including the lien holders of record,
25 is not ascertainable, notice mailed to the person or persons
26 in whose name the real estate was last assessed is sufficient
27 notice under this Section.
28 The hearing upon the application to the circuit court
29 shall be expedited by the court and shall be given precedence
30 over all other suits. Any person entitled to bring an action
31 under subsection (b) shall have the right to intervene in an
32 action brought under this Section.
33 The cost of the demolition, repair, enclosure, or removal
34 incurred by the municipality, by an intervenor, or by a lien
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1 holder of record, including court costs, attorney's fees, and
2 other costs related to the enforcement of this Section, is
3 recoverable from the owner or owners of the real estate or
4 the previous owner or both if the property was transferred
5 during the 15 day notice period and is a lien on the real
6 estate; the lien is superior to all prior existing liens and
7 encumbrances, except taxes, if, within 180 days after the
8 repair, demolition, enclosure, or removal, the municipality,
9 the lien holder of record, or the intervenor who incurred the
10 cost and expense shall file a notice of lien for the cost and
11 expense incurred in the office of the recorder in the county
12 in which the real estate is located or in the office of the
13 registrar of titles of the county if the real estate affected
14 is registered under the Registered Titles (Torrens) Act.
15 The notice must consist of a sworn statement setting out
16 (1) a description of the real estate sufficient for its
17 identification, (2) the amount of money representing the cost
18 and expense incurred, and (3) the date or dates when the cost
19 and expense was incurred by the municipality, the lien holder
20 of record, or the intervenor. Upon payment of the cost and
21 expense by the owner of or persons interested in the property
22 after the notice of lien has been filed, the lien shall be
23 released by the municipality, the person in whose name the
24 lien has been filed, or the assignee of the lien, and the
25 release may be filed of record as in the case of filing
26 notice of lien. Unless the lien is enforced under subsection
27 (c), the lien may be enforced by foreclosure proceedings as
28 in the case of mortgage foreclosures under Article XV of the
29 Code of Civil Procedure or mechanics' lien foreclosures. An
30 action to foreclose this lien may be commenced at any time
31 after the date of filing of the notice of lien. The costs of
32 foreclosure incurred by the municipality, including court
33 costs, reasonable attorney's fees, advances to preserve the
34 property, and other costs related to the enforcement of this
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1 subsection, plus statutory interest, are a lien on the real
2 estate and are recoverable by the municipality from the owner
3 or owners of the real estate.
4 All liens arising under this subsection (a) shall be
5 assignable. The assignee of the lien shall have the same
6 power to enforce the lien as the assigning party, except that
7 the lien may not be enforced under subsection (c).
8 If the appropriate official of any municipality
9 determines that any dangerous and unsafe building or
10 uncompleted and abandoned building within its territory
11 fulfills the requirements for an action by the municipality
12 under the Abandoned Housing Rehabilitation Act, the
13 municipality may petition under that Act in a proceeding
14 brought under this subsection.
15 (b) Any owner or tenant of real property within 1200
16 feet in any direction of any dangerous or unsafe building
17 located within the territory of a municipality with a
18 population of 500,000 or more may file with the appropriate
19 municipal authority a request that the municipality apply to
20 the circuit court of the county in which the building is
21 located for an order permitting the demolition, removal of
22 garbage, debris, and other noxious or unhealthy substances
23 and materials from, or repair or enclosure of the building in
24 the manner prescribed in subsection (a) of this Section. If
25 the municipality fails to institute an action in circuit
26 court within 90 days after the filing of the request, the
27 owner or tenant of real property within 1200 feet in any
28 direction of the building may institute an action in circuit
29 court seeking an order compelling the owner or owners of
30 record to demolish, remove garbage, debris, and other noxious
31 or unhealthy substances and materials from, repair or enclose
32 or to cause to be demolished, have garbage, debris, and other
33 noxious or unhealthy substances and materials removed from,
34 repaired, or enclosed the building in question. A private
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1 owner or tenant who institutes an action under the preceding
2 sentence shall not be required to pay any fee to the clerk of
3 the circuit court. The cost of repair, removal, demolition,
4 or enclosure shall be borne by the owner or owners of record
5 of the building. In the event the owner or owners of record
6 fail to demolish, remove garbage, debris, and other noxious
7 or unhealthy substances and materials from, repair, or
8 enclose the building within 90 days of the date the court
9 entered its order, the owner or tenant who instituted the
10 action may request that the court join the municipality as a
11 party to the action. The court may order the municipality to
12 demolish, remove materials from, repair, or enclose the
13 building, or cause that action to be taken upon the request
14 of any owner or tenant who instituted the action or upon the
15 municipality's request. The municipality may file, and the
16 court may approve, a plan for rehabilitating the building in
17 question. A court order authorizing the municipality to
18 demolish, remove materials from, repair, or enclose a
19 building, or cause that action to be taken, shall not
20 preclude the court from adjudging the owner or owners of
21 record of the building in contempt of court due to the
22 failure to comply with the order to demolish, remove garbage,
23 debris, and other noxious or unhealthy substances and
24 materials from, repair, or enclose the building.
25 If a municipality or a person or persons other than the
26 owner or owners of record pay the cost of demolition, removal
27 of garbage, debris, and other noxious or unhealthy substances
28 and materials, repair, or enclosure pursuant to a court
29 order, the cost, including court costs, attorney's fees, and
30 other costs related to the enforcement of this subsection, is
31 recoverable from the owner or owners of the real estate and
32 is a lien on the real estate; the lien is superior to all
33 prior existing liens and encumbrances, except taxes, if,
34 within 180 days after the repair, removal, demolition, or
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1 enclosure, the municipality or the person or persons who paid
2 the costs of demolition, removal, repair, or enclosure shall
3 file a notice of lien of the cost and expense incurred in the
4 office of the recorder in the county in which the real estate
5 is located or in the office of the registrar of the county if
6 the real estate affected is registered under the Registered
7 Titles (Torrens) Act. The notice shall be in a form as is
8 provided in subsection (a). An owner or tenant who
9 institutes an action in circuit court seeking an order to
10 compel the owner or owners of record to demolish, remove
11 materials from, repair, or enclose any dangerous or unsafe
12 building, or to cause that action to be taken under this
13 subsection may recover court costs and reasonable attorney's
14 fees for instituting the action from the owner or owners of
15 record of the building. Upon payment of the costs and
16 expenses by the owner of or a person interested in the
17 property after the notice of lien has been filed, the lien
18 shall be released by the municipality or the person in whose
19 name the lien has been filed or his or her assignee, and the
20 release may be filed of record as in the case of filing a
21 notice of lien. Unless the lien is enforced under subsection
22 (c), the lien may be enforced by foreclosure proceedings as
23 in the case of mortgage foreclosures under Article XV of the
24 Code of Civil Procedure or mechanics' lien foreclosures. An
25 action to foreclose this lien may be commenced at any time
26 after the date of filing of the notice of lien. The costs of
27 foreclosure incurred by the municipality, including court
28 costs, reasonable attorneys' fees, advances to preserve the
29 property, and other costs related to the enforcement of this
30 subsection, plus statutory interest, are a lien on the real
31 estate and are recoverable by the municipality from the owner
32 or owners of the real estate.
33 All liens arising under the terms of this subsection (b)
34 shall be assignable. The assignee of the lien shall have the
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1 same power to enforce the lien as the assigning party, except
2 that the lien may not be enforced under subsection (c).
3 (c) In any case where a municipality has obtained a lien
4 under subsection (a), (b), or (f), the municipality may
5 enforce the lien under this subsection (c) in the same
6 proceeding in which the lien is authorized.
7 A municipality desiring to enforce a lien under this
8 subsection (c) shall petition the court to retain
9 jurisdiction for foreclosure proceedings under this
10 subsection. Notice of the petition shall be served, by
11 certified or registered mail, on all persons who were served
12 notice under subsection (a), (b), or (f). The court shall
13 conduct a hearing on the petition not less than 15 days after
14 the notice is served. If the court determines that the
15 requirements of this subsection (c) have been satisfied, it
16 shall grant the petition and retain jurisdiction over the
17 matter until the foreclosure proceeding is completed. The
18 costs of foreclosure incurred by the municipality, including
19 court costs, reasonable attorneys' fees, advances to preserve
20 the property, and other costs related to the enforcement of
21 this subsection, plus statutory interest, are a lien on the
22 real estate and are recoverable by the municipality from the
23 owner or owners of the real estate. If the court denies the
24 petition, the municipality may enforce the lien in a separate
25 action as provided in subsection (a), (b), or (f).
26 All persons designated in Section 15-1501 of the Code of
27 Civil Procedure as necessary parties in a mortgage
28 foreclosure action shall be joined as parties before issuance
29 of an order of foreclosure. Persons designated in Section
30 15-1501 of the Code of Civil Procedure as permissible parties
31 may also be joined as parties in the action.
32 The provisions of Article XV of the Code of Civil
33 Procedure applicable to mortgage foreclosures shall apply to
34 the foreclosure of a lien under this subsection (c), except
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1 to the extent that those provisions are inconsistent with
2 this subsection. For purposes of foreclosures of liens
3 under this subsection, however, the redemption period
4 described in subsection (b) of Section 15-1603 of the Code of
5 Civil Procedure shall end 60 days after the date of entry of
6 the order of foreclosure.
7 (d) In addition to any other remedy provided by law, the
8 corporate authorities of any municipality may petition the
9 circuit court to have property declared abandoned under this
10 subsection (d) if:
11 (1) the property has been tax delinquent for 2 or
12 more years or bills for water service for the property
13 have been outstanding for 2 or more years;
14 (2) the property is unoccupied by persons legally
15 in possession; and
16 (3) the property contains a dangerous or unsafe
17 building.
18 All persons having an interest of record in the property,
19 including tax purchasers and beneficial owners of any
20 Illinois land trust having title to the property, shall be
21 named as defendants in the petition and shall be served with
22 process. In addition, service shall be had under Section
23 2-206 of the Code of Civil Procedure as in other cases
24 affecting property.
25 The municipality, however, may proceed under this
26 subsection in a proceeding brought under subsection (a) or
27 (b). Notice of the petition shall be served by certified or
28 registered mail on all persons who were served notice under
29 subsection (a) or (b).
30 If the municipality proves that the conditions described
31 in this subsection exist and the owner of record of the
32 property does not enter an appearance in the action, or, if
33 title to the property is held by an Illinois land trust, if
34 neither the owner of record nor the owner of the beneficial
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1 interest of the trust enters an appearance, the court shall
2 declare the property abandoned.
3 If that determination is made, notice shall be sent by
4 certified or registered mail to all persons having an
5 interest of record in the property, including tax purchasers
6 and beneficial owners of any Illinois land trust having title
7 to the property, stating that title to the property will be
8 transferred to the municipality unless, within 30 days of the
9 notice, the owner of record enters an appearance in the
10 action, or unless any other person having an interest in the
11 property files with the court a request to demolish the
12 dangerous or unsafe building or to put the building in safe
13 condition.
14 If the owner of record enters an appearance in the action
15 within the 30 day period, the court shall vacate its order
16 declaring the property abandoned. In that case, the
17 municipality may amend its complaint in order to initiate
18 proceedings under subsection (a).
19 If a request to demolish or repair the building is filed
20 within the 30 day period, the court shall grant permission to
21 the requesting party to demolish the building within 30 days
22 or to restore the building to safe condition within 60 days
23 after the request is granted. An extension of that period
24 for up to 60 additional days may be given for good cause. If
25 more than one person with an interest in the property files a
26 timely request, preference shall be given to the person with
27 the lien or other interest of the highest priority.
28 If the requesting party proves to the court that the
29 building has been demolished or put in a safe condition
30 within the period of time granted by the court, the court
31 shall issue a quitclaim judicial deed for the property to the
32 requesting party, conveying only the interest of the owner of
33 record, upon proof of payment to the municipality of all
34 costs incurred by the municipality in connection with the
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1 action, including but not limited to court costs, attorney's
2 fees, administrative costs, the costs, if any, associated
3 with building enclosure or removal, and receiver's
4 certificates. The interest in the property so conveyed shall
5 be subject to all liens and encumbrances on the property. In
6 addition, if the interest is conveyed to a person holding a
7 certificate of purchase for the property under the Property
8 Tax Code, the conveyance shall be subject to the rights of
9 redemption of all persons entitled to redeem under that Act,
10 including the original owner of record.
11 If no person with an interest in the property files a
12 timely request or if the requesting party fails to demolish
13 the building or put the building in safe condition within the
14 time specified by the court, the municipality may petition
15 the court to issue a judicial deed for the property to the
16 municipality. A conveyance by judicial deed shall operate to
17 extinguish all existing ownership interests in, liens on, and
18 other interest in the property, including tax liens, and
19 shall extinguish the rights and interests of any and all
20 holders of a bona fide certificate of purchase of the
21 property for delinquent taxes. Any such bona fide
22 certificate of purchase holder shall be entitled to a sale in
23 error as prescribed under Section 21-310 of the Property Tax
24 Code.
25 (e) Each municipality may use the provisions of this
26 subsection to expedite the removal of certain buildings that
27 are a continuing hazard to the community in which they are
28 located.
29 If a residential building is 2 stories or less in height
30 as defined by the municipality's building code, and the
31 corporate official designated to be in charge of enforcing
32 the municipality's building code determines that the building
33 is open and vacant and an immediate and continuing hazard to
34 the community in which the building is located, then the
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1 official shall be authorized to post a notice not less than 2
2 feet by 2 feet in size on the front of the building. The
3 notice shall be dated as of the date of the posting and shall
4 state that unless the building is demolished, repaired, or
5 enclosed, and unless any garbage, debris, and other
6 hazardous, noxious, or unhealthy substances or materials are
7 removed so that an immediate and continuing hazard to the
8 community no longer exists, then the building may be
9 demolished, repaired, or enclosed, or any garbage, debris,
10 and other hazardous, noxious, or unhealthy substances or
11 materials may be removed, by the municipality.
12 Not later than 30 days following the posting of the
13 notice, the municipality shall do both of the following:
14 (1) Cause to be sent, by certified mail, return
15 receipt requested, a notice to all owners of record of
16 the property, the beneficial owners of any Illinois land
17 trust having title to the property, and all lienholders
18 of record in the property, stating the intent of the
19 municipality to demolish, repair, or enclose the building
20 or remove any garbage, debris, or other hazardous,
21 noxious, or unhealthy substances or materials if that
22 action is not taken by the owner or owners.
23 (2) Cause to be published, in a newspaper published
24 or circulated in the municipality where the building is
25 located, a notice setting forth (i) the permanent tax
26 index number and the address of the building, (ii) a
27 statement that the property is open and vacant and
28 constitutes an immediate and continuing hazard to the
29 community, and (iii) a statement that the municipality
30 intends to demolish, repair, or enclose the building or
31 remove any garbage, debris, or other hazardous, noxious,
32 or unhealthy substances or materials if the owner or
33 owners or lienholders of record fail to do so. This
34 notice shall be published for 3 consecutive days.
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1 A person objecting to the proposed actions of the
2 corporate authorities may file his or her objection in an
3 appropriate form in a court of competent jurisdiction.
4 If the building is not demolished, repaired, or enclosed,
5 or the garbage, debris, or other hazardous, noxious, or
6 unhealthy substances or materials are not removed, within 30
7 days of mailing the notice to the owners of record, the
8 beneficial owners of any Illinois land trust having title to
9 the property, and all lienholders of record in the property,
10 or within 30 days of the last day of publication of the
11 notice, whichever is later, the corporate authorities shall
12 have the power to demolish, repair, or enclose the building
13 or to remove any garbage, debris, or other hazardous,
14 noxious, or unhealthy substances or materials.
15 The municipality may proceed to demolish, repair, or
16 enclose a building or remove any garbage, debris, or other
17 hazardous, noxious, or unhealthy substances or materials
18 under this subsection within a 120-day period following the
19 date of the mailing of the notice if the appropriate official
20 determines that the demolition, repair, enclosure, or removal
21 of any garbage, debris, or other hazardous, noxious, or
22 unhealthy substances or materials is necessary to remedy the
23 immediate and continuing hazard. If, however, before the
24 municipality proceeds with any of the actions authorized by
25 this subsection, any person has sought a hearing under this
26 subsection before a court and has served a copy of the
27 complaint on the chief executive officer of the municipality,
28 then the municipality shall not proceed with the demolition,
29 repair, enclosure, or removal of garbage, debris, or other
30 substances until the court determines that that action is
31 necessary to remedy the hazard and issues an order
32 authorizing the municipality to do so.
33 Following the demolition, repair, or enclosure of a
34 building, or the removal of garbage, debris, or other
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1 hazardous, noxious, or unhealthy substances or materials
2 under this subsection, the municipality may file a notice of
3 lien against the real estate for the cost of the demolition,
4 repair, enclosure, or removal within 180 days after the
5 repair, demolition, enclosure, or removal occurred, for the
6 cost and expense incurred, in the office of the recorder in
7 the county in which the real estate is located or in the
8 office of the registrar of titles of the county if the real
9 estate affected is registered under the Registered Titles
10 (Torrens) Act. The notice of lien shall consist of a sworn
11 statement setting forth (i) a description of the real estate,
12 such as the address or other description of the property,
13 sufficient for its identification; (ii) the expenses incurred
14 by the municipality in undertaking the remedial actions
15 authorized under this subsection; (iii) the date or dates the
16 expenses were incurred by the municipality; (iv) a statement
17 by the corporate official responsible for enforcing the
18 building code that the building was open and vacant and
19 constituted an immediate and continuing hazard to the
20 community; (v) a statement by the corporate official that the
21 required sign was posted on the building, that notice was
22 sent by certified mail to the owners of record, and that
23 notice was published in accordance with this subsection; and
24 (vi) a statement as to when and where the notice was
25 published. The lien authorized by this subsection may
26 thereafter be released or enforced by the municipality as
27 provided in subsection (a).
28 (f) The corporate authorities of each municipality may
29 remove or cause the removal of, or otherwise environmentally
30 remediate hazardous substances on, in, or under any abandoned
31 and unsafe property within the territory of a municipality.
32 In addition, where preliminary evidence indicates the
33 presence or likely presence of a hazardous substance or a
34 release or a substantial threat of a release of a hazardous
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1 substance on, in, or under the property, the corporate
2 authorities of the municipality may inspect the property and
3 test for the presence or release of hazardous substances. In
4 any county having adopted by referendum or otherwise a county
5 health department as provided by Division 5-25 of the
6 Counties Code or its predecessor, the county board of that
7 county may exercise the above-described powers with regard to
8 property within the territory of any city, village, or
9 incorporated town having less than 50,000 population.
10 For purposes of this subsection (f):
11 (1) "property" or "real estate" means all real
12 property, whether or not improved by a structure;
13 (2) "abandoned" means;
14 (A) the property has been tax delinquent for 2
15 or more years;
16 (B) the property is unoccupied by persons
17 legally in possession; and
18 (3) "unsafe" means property that presents an actual
19 or imminent threat to public health and safety caused by
20 the release of hazardous substances; and
21 (4) "hazardous substances" means the same as in
22 Section 3.14 of the Environmental Protection Act.
23 The corporate authorities shall apply to the circuit
24 court of the county in which the property is located (i) for
25 an order allowing the municipality to enter the property and
26 inspect and test substances on, in, or under the property; or
27 (ii) for an order authorizing the corporate authorities to
28 take action with respect to remediation of the property if
29 conditions on the property, based on the inspection and
30 testing authorized in paragraph (i), indicate the presence of
31 hazardous substances. Remediation shall be deemed complete
32 for purposes of paragraph (ii) above when the property
33 satisfies Tier I, II, or III remediation objectives for the
34 property's most recent usage, as established by the
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1 Environmental Protection Act, and the rules and regulations
2 promulgated thereunder. Where, upon diligent search, the
3 identity or whereabouts of the owner or owners of the
4 property, including the lien holders of record, is not
5 ascertainable, notice mailed to the person or persons in
6 whose name the real estate was last assessed is sufficient
7 notice under this Section.
8 The court shall grant an order authorizing testing under
9 paragraph (i) above upon a showing of preliminary evidence
10 indicating the presence or likely presence of a hazardous
11 substance or a release of or a substantial threat of a
12 release of a hazardous substance on, in, or under abandoned
13 property. The preliminary evidence may include, but is not
14 limited to, evidence of prior use, visual site inspection, or
15 records of prior environmental investigations. The testing
16 authorized by paragraph (i) above shall include any type of
17 investigation which is necessary for an environmental
18 professional to determine the environmental condition of the
19 property, including but not limited to performance of soil
20 borings and groundwater monitoring. The court shall grant a
21 remediation order under paragraph (ii) above where testing of
22 the property indicates that it fails to meet the applicable
23 remediation objectives. The hearing upon the application to
24 the circuit court shall be expedited by the court and shall
25 be given precedence over all other suits.
26 The cost of the inspection, testing, or remediation
27 incurred by the municipality or by a lien holder of record,
28 including court costs, attorney's fees, and other costs
29 related to the enforcement of this Section, is a lien on the
30 real estate; except that in any instances where a
31 municipality incurs costs of inspection and testing but finds
32 no hazardous substances on the property that present an
33 actual or imminent threat to public health and safety, such
34 costs are not recoverable from the owners nor are such costs
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1 a lien on the real estate. The lien is superior to all prior
2 existing liens and encumbrances, except taxes and any lien
3 obtained under subsection (a) or (e), if, within 180 days
4 after the completion of the inspection, testing, or
5 remediation, the municipality or the lien holder of record
6 who incurred the cost and expense shall file a notice of lien
7 for the cost and expense incurred in the office of the
8 recorder in the county in which the real estate is located or
9 in the office of the registrar of titles of the county if the
10 real estate affected is registered under the Registered
11 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
15 cost and expense incurred, and (iii) the date or dates when
16 the cost and expense was incurred by the municipality or the
17 lien holder of record. Upon payment of the lien amount by
18 the owner of or persons interested in the property after the
19 notice of lien has been filed, a release of lien shall be
20 issued by the municipality, the person in whose name the lien
21 has been filed, or the assignee of the lien, and the release
22 may be filed of record as in the case of filing notice of
23 lien.
24 The lien may be enforced under subsection (c) or by
25 foreclosure proceedings as in the case of mortgage
26 foreclosures under Article XV of the Code of Civil Procedure
27 or mechanics' lien foreclosures; provided that where the lien
28 is enforced by foreclosure under subsection (c) or under
29 either statute, the municipality may not proceed against the
30 other assets of the owner or owners of the real estate for
31 any costs that otherwise would be recoverable under this
32 Section but that remain unsatisfied after foreclosure except
33 where such additional recovery is authorized by separate
34 environmental laws. An action to foreclose this lien may be
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1 commenced at any time after the date of filing of the notice
2 of lien. The costs of foreclosure incurred by the
3 municipality, including court costs, reasonable attorney's
4 fees, advances to preserve the property, and other costs
5 related to the enforcement of this subsection, plus statutory
6 interest, are a lien on the real estate.
7 All liens arising under this subsection (f) shall be
8 assignable. The assignee of the lien shall have the same
9 power to enforce the lien as the assigning party, except that
10 the lien may not be enforced under subsection (c).
11 (Source: P.A. 89-235, eff. 8-4-95; 89-303, eff. 1-1-96;
12 90-393, eff. 1-1-98.)