Category: Property Disputes

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.

 

Residential Real Property Disclosure Act

Residential Real Property Disclosure Act

The Residential Real Property Disclosure Act (765 ILCS 77) was passed in 1998 to protect home buyers from sellers who falsely report conditions of their property during a real estate transaction. The disclosure act is intended to provide buyers with a reliable representation on the major conditions of the property. Under this act, the seller has to deliver to the prospective buyer a written disclosure statement before the signing of a written agreement between the seller and the prospective buyer. The goal of the disclosure is to report any damages or material defects to the residential property.

According to the Act, material defects are required to be disclosed by the Seller. Based on a disclosed material defect, a prospective buyer may terminate the contract 3 business days after the receipt of the report (765 ILCS 77/40). Some Sellers fail to disclose material defects to the Buyers, which may result in a Buyer seeking damages. The Act provides a remedy for damages acquired by a prospective buyer of the residential property who discovers false information on the disclosure report before the closing transaction. If a seller knowingly violates the Act, “…he…shall be liable in the number of actual damages and court costs, and the court may award reasonable attorney fees incurred by the prevailing party.” (765 ILCS 77/55)

Under this disclosure act the seller is not liable if (1) the seller had no knowledge of the error, (2) the error was based on reasonable belief that a material defect had been corrected, or (3) the error was based on information provided by a licensed professional. In order to complete the disclosure statement, the seller is not obligated to make an investigation or inquiry into any defects. (765 ILCS 77/25) The seller does become liable if he or she fails to provide the disclosure. The disclosure document must be provided prior to the transfer of the residential real property. If the seller refuses or fails to provide the disclosure, the buyer does have the right to terminate the contract.

If you need assistance with a real estate transaction, local attorney Andrew Szocka provides thorough and speedy real estate transaction assistance in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455 – 8430.

Landlord Leases: How to Protect Your Property and Finances

Landlord Leases: How to Protect Your Property and Finances

Being a landlord includes many challenges. While facing those challenges, it is critical to protect your property and your finances. Bad tenants can result in damages to your property which will incur costs, sometimes in the thousands. However, you can protect your property and finances from bad tenants by writing a good lease.

The Basics

First, remember to have your basics in the lease.

  1. Who is the Lessee?
  2. What time period is the lease for?
  3. How much are you to be paid?
  4. When will you be paid?
  5. Who is responsible for the utilities?

Those are only a few of the basic questions you must ask yourself when preparing a lease. After the basics are laid out, it is time to go into detail.

Always Be Specific.

Beyond the basics, it is important to be specific in the lease just like any other contract. For example, if you do not want pets on your property at all, then make sure that is explicitly stated in the lease. In order to deter tenants from doing what you do not want them to do, make sure the consequences are clearly outlined. For example, if you say that no pets are allowed on your property, then stipulate that there will be a fine for breaking this rule if that is the consequence you choose.

Attorney’s Costs and Fees

The biggest deterrent, and a clause that should always be present in a lease, is that the tenant will be responsible for attorneys’ costs and fees if you must use the legal route to recover money or compensation for damages done by the tenant. Without this clause, you could end up paying for the legal fees out of pocket. The tenant will not be obligated to pay this unless it was stated in the lease. This clause in the lease protects you financially and should always be included in the lease.

Like any other contract, it is in your best interest to have the lease in writing and signed by all parties living on the property.  While many landlords choose to write their own leases, it is never a bad option to have a lawyer write up a lease for your protection.

If you are interested in having an attorney draft a release for your rental property or properties, local attorney Andrew Szocka provides thorough lease writing in the Chicagoland area. To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.

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.