Category: Property Disputes

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

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

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

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

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

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

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

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

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

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

 

PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

PARTITION: THE PREFERENCE OF ILLINOIS COURTS FOR DIVISION OF REAL PROPERTY RATHER THAN SALE

Partition of land divides real property among two or more joint tenants or tenants in common.  See 735 ILCS 5/17-101; Peck v. Peck, 157 N.E.2d 249, 285 (1959).  The purpose of a partition is to enable various owners to sever their interests and possess, enjoy, and improve the new separate portion.  Id.

A partition action must be initiated with a verified complaint filed in the circuit court of the county where the land is located.  735 ILCS 5/17-101.  The verified complaint needs to include a particular description of the premises sought to be divided.  735 ILCS 5/17-102.  Although “particular description” is not further defined, it likely includes the property’s legal description, tax identification number, and common address.

Next, a partition complaint must name all parties with an interest in the property that are known to plaintiff.  Id.  This includes tenants and those entitled to an inheritance or future beneficial interest.  Id.  Finally, the complaint shall ask for division of the property according to the respective rights of the interested parties.  Id.

Land partitions are accomplished two ways, 1) the property is divided among the current owners, or 2) the entire property is sold and the proceeds divided equitably among the previous owners.  Illinois courts favor division of land rather than a division of proceeds from the land’s sale.  Peck, 157 N.E.2d at 285-86.  A partition sale is considered improper unless the property cannot be divided without prejudice to the rights of the parties.  Id.  In order to determine whether division is possible, Illinois courts may appoint an independent commissioner, either sua sponte or upon motion of a party.  735 ILCS 5/17-106.

Ultimately, Illinois law favors an equitable and equal division of property, but will award owelty, i.e. equalization charge to even the parties’ interests.  Harris v. Johnson, 42 Ill.App.3d 751, 754 (3rd Dist. 1976).  In Harris, two parties owned an irregularly shaped strip of land that divided two separate parcels (defined as “Outlot 19”).  Id. at 752.  Plaintiff owned the property to north of Outlot 19.  Id.  Defendant owned the property to the south of Outlot 19.  Id.

Complicating matters was the presence of a garage on Outlot 19.  Id.  This garage rested primarily on Outlot 19, but overlapped onto plaintiff’s northern property by about 20%.  Id.  Both parties used the garage.  Id.

The court divided the property in a way the deprived defendant use of the garage.  Id. at 752-53.  However, the court ordered plaintiff to award defendant $2,400.00 in exchange for defendant’s loss as an equalization charge.  Id. at 754-755.  The court noted that division and owelty, rather than sale, was the preferred and most equitable result.  Id.

But courts will not back away from a partition sale in more unusual circumstances.  Wright v. Wright, 131 Ill.App.3d 46 (3rd Dist. 1985).  In Wright, 13 heirs to a parcel of property sought its partition.  Id. at 47.  The court appointed an independent commissioner who recommended that the property could not be equitably divided.  Id. at 47-48.

The court agreed with the commissioner’s report in that dividing the property into 13 sections would be prejudicial to the parties.  Id.  All of the sections would be too small to use effectively, and some would be landlocked.  Id. at 48-49.  As a result, the court approved the sale and division of proceeds.  Id. at 49.

When faced with a partition action, it is clear Illinois courts prefer dividing land.  But they will also not rule out a sale if necessary.

 

For additional reading on land partition see:

 

Rosenbaum v. Rosenbaum, 38 Ill.App.3d 1 (1st Dist. 1976);

Anderson v. Anderson, 62 Ill.App.3d 468 (1st Dist. 1978);

O’Malley v. Walker, 4 Ill.App.2d 555 (1st Dist. 1955).

 

Law Office of Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

EASEMENTS: HOW ONE CAN GIVE SOMEONE ELSE A RIGHT TO USE YOUR PROPERTY.

EASEMENTS: HOW ONE CAN GIVE SOMEONE ELSE A RIGHT TO USE YOUR PROPERTY.

If you own property, there is a good chance that it is subject to an Easement.  Easements can be relatively new, created within the last few years, or possibly over 100 years old.

In order to be effective, an Easement must be recorded.  This means that the Easement is placed of record with the county in which your property is located.  A recorded Easement should show up on your property’s title history (along with any mortgages you have or deeds that transferred ownership of the property over the years).

An Easement essentially give another party certain rights to your property.  A common example of an Easement is one for utility or cable companies.  Modern technology allows electrical, cable, and other wires to be placed underground.  These wires may then run underneath parts of your property.  Utility and cable companies need to be able to fix, repair, or update their equipment.  As a result, they may be granted an Easement to perform this work on your property.

Another example of an Easement is a neighbor’s right to use a driveway on your property to access the road.  If your neighbor’s does not have any road access, otherwise known as “land-locked,” he may be given the right to use a portion of your driveway in the form of an Easement.

You should avoid building structures over any Easements that affect your property.  This is called “encroaching” on an Easement.

An encroachment on an Easement could be a fence that runs along a utility company’s Easement and prevents them from digging underground to repair their equipment.  Or an encroachment could be a gate built on your driveway that doesn’t allow your neighbor to access the street.

Encroachments on an Easement can cause problems if it prevents a party from using the Easement for its proper purpose.  You may be forced to remove a portion of your fence if it prevents a utility company from reaching its equipment.  Or you may need to remove the gate that doesn’t allow your neighbor to get to the road.

Encroachments on an Easement can also provide issues if you wish to sell your home.  A company that an owner’s title insurance policy to your buyer will not provide insurance for many encroachments over Easements.  This can make your property more difficult to sell.

Having a good attorney can help understanding any Easements that affect your property.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.

Adverse Possession: Can You Get Property For Nothing?

ADVERSE POSSESSION: CAN YOU GET PROPERTY FOR NOTHING?

In Illinois, it is possible to develop a claim to property that was never originally yours or never officially conveyed to you.  This is the doctrine of Adverse Possession, sometimes commonly referred to as “squatter’s rights.”

You can obtain property by Adverse Possession when the following occurs for 20 consecutive years: (1) you continuously use the property, (2) your use of the property is not permitted by the actual owner, or is “hostile” (3) you do not hide that you are using the property, and (4) your use of the property conflicts with the actual owner’s right to use and possess the property.

For example, you might build a garage on a piece of vacant property next to your house.  If you continuously park your car in the garage, and openly drive in and out of the garage for 20 years, without the permission of the owner of the vacant land, you have a claim to the vacant land.

Although this rule may sound unfair, it is supported by public policy.  If the owner of the vacant land was not using it, and you were actively driving in and out of a garage built on the vacant land, you were putting the property to better use.

There are some exceptions to Adverse Possession.  If the owner of the vacant land where your garage now sits, paid the property taxes on the vacant land for the last seven years, the owner of the vacant land can likely defeat your Adverse Possession claim.  Alternatively, if the owner of the vacant land was disabled or in the United States military while you were using the garage, your Adverse Possession claim may also fail.

Having a good attorney can help avoid losing your property to adverse possession.  It can clear up confusion you may have as a property owner so you do not have to face a lawsuit down the road.

SLANDER OF TITLE: POTENTIAL CONSEQUENCES OF RECORDING A FALSE DOCUMENT.

SLANDER OF TITLE: POTENTIAL CONSEQUENCES OF RECORDING A FALSE DOCUMENT.

Illinois recognizes a cause of action if a document is falsely recorded against your real estate property’s title.  This cause of action is referred to as “slander of title.”  Depending on the intent of the individual or entity that slandered your property’s title, it can result in a significant award of monetary damages in your favor.

In order to win a slander of title lawsuit, you must first correctly plead the required elements.  Generally, slander of title involves the recording of a document in the county where your property is located that subsequently damages the property’s title.  However, the recording of a document is not necessary required.  Written or even oral words can rise to the level of slander of title.  Jody D. v. Bank of America, N.A., 2018 IL App (3d) 170558-U.

Elements for slander of title are 1) oral or written words that falsely disparage the property’s title; 2) damages suffered by the individual that owns the property, and 3) a degree of malice.  Jody D., 2018 IL App (3d) 170558-U; Nelson v. Bayview Loan Servicing, LLC, 2014 IL App (5th) 120419-U.

Any document that is inappropriately recorded, or any words or writings that disparage the property’s title and damage the property owner could form the basis for a slander of title claim.  The issues that arise in Illinois case law related to slander of title tend to focus more on damages suffered by the property owner and the degree of malice that motivated the other party.

First, damages must actually exist.  In Nelson, plaintiff brought an action against a loan company for failure to release a mortgage after the underlying loan was paid off.  Id. at ¶ 77.  The plaintiff failed to show how he was monetarily damaged by the unreleased mortgage.  Id.  As a result, judgment was granted in favor of the loan company.

An example of damages may have been that the plaintiff was not given a loan, or was not given a loan at a lower interest rate, due to the presence of the unreleased mortgage.

The failure to show any malice on the part of the individual or entity that purportedly slandered your title can also ruin a cause of action.  In Roy Zenere Trucking & Excavating, Inc. v. Build Tech, Inc., 2016 IL App (3d) 140946, a group of contractors recorded mechanics’ liens against a property owner’s title.  Id. at ¶ 49.  But the property owner failed to establish any fraudulent intent on the part of the contractors.  The court stated that “To prove malice, a plaintiff must show that the defendant knew that the disparaging statements were made with reckless disregard of their truth or falsity.  The law in Illinois is that if a party has reasonable grounds to believe that he had legal or equitable title or even a claim, then assertion of this claim does not amount to slander of title.”  Id.  As a result, judgment was entered in favor of the contractors.  Id.

Yet when malice exists, it can result in a monetary award to the property owner, including punitive damages.  See Chicago Title and Trust Co. v. Levine, 333 Ill.App.3d 420, 422 (3rd Dist. 2002).  In Levine, an individual recorded a lien against property despite an existing court order not to further encumber the property.  Id. at 424.  The property owner also showed that the lienholder knew of the existing court order.  Id.  The court awarded the property owner $3,929.60 in attorneys’ fees and $30,000.00 in punitive damages.  Id. at 422.

It is clear from the Illinois case law that a slander of title cause of action is difficult to bring and maintain.  However, in the presence of actual damages and malice, a property owner can prevail.

For additional reading on slander of title see:

 

Gambino v. Boulevard Mortg. Corp., 398 Ill.App.3d 21 (1st Dist. 2009);

Contract Development Corp. v. Beck, 255 Ill.App.3d 660 (2nd Dist. 1994);

Home Investments Fund v. Robertson, 10 Ill.App.3d 840 (2nd Dist. 1973).

 

Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.