EJECTMENT: THE STATUTE AND CASE LAW BEHIND THE CAUSE OF ACTION
An ejectment action can be a useful tool to help a client recover real estate when another party is wrongfully in possession. Ejectment is based in statutory law. See 735 ILCS 5/6-101, et seq.
A complaint for ejectment must contain certain allegations. 735 ILCS 5/6-109. Plaintiff must plead that 1) he had possession of the premises after obtaining legal title, 2) defendant subsequently took possession of the premises, 3) at present, defendant continues to unlawfully hold possession from the plaintiff, and any damages suffered by plaintiff as a result of the ejectment, which could even be a nominal sum. Id.
The complaint must also describe the property with sufficient certainty. 735 ILCS 5/6-110. This may be as simple as the property’s common address. However, it is probably safer to include the property’s legal description and parcel identification number. At least one older Illinois case held that a legal description was sufficient to identify the property. See Parr v. Horn, 38 Ill. 226 (1865).
Other Illinois case law on ejectment has stated that a “a plaintiff in ejectment must recover on the strength of his own title rather than the weakness of his adversary’s title.” Bulatovic v. Dobritchanin, 252 Ill.App.3d 122, 128-29 (1st Dist. 1993). In other words, plaintiff’s interest must be “higher and better” than that of defendant. Whitham v. Ellsworth, 259 Ill. 243, 246 (1913).
The best way for plaintiff to prove an interest in the property may be with a recorded conveyance. Bulatovic, 252 Ill.App.3d at 128. Bulatovic states that the plaintiff “must show proof of title under a deed sufficient to entitle him to possession.” Id. However, the ejectment statute provides for an action brought by an heir or legatee. 735 ILCS 5/6-102. So, it is at least necessary for the plaintiff to show a link between himself and the holder of the property’s legal title. Department of Conservation ex rel. People v. Fairless, 273 Ill.App.3d 705, 711 (5th Dist. 1995).
As far as proof of defendant’s possession, it is not necessary for the plaintiff to prove this element for ejectment unless the defendant files a verified answer that specifically denies possession. 735 ICLS 5/6-118.
Note that ejectment can apply to defendant’s unauthorized possession of an entire parcel of property, or only a portion of the parcel. See Tatham v. Fields, 2013 IL App (5th) 130179-U.
In Tatham, plaintiff permitted defendant to put a temporary boat lift on plaintiff’s property, but specifically prohibited defendant from installing the lift as a permanent structure. Id. at ¶ 10. Despite this instruction, defendant upgraded the boat lift to become permanent. Id. at ¶ 11. Plaintiff demanded that defendant remove the structure from his property. Id. at ¶ 13. Defendant refused and plaintiff filed an ejectment action to remove defendant’s possession from that portion of plaintiff’s property. Id. at 4. The court granted plaintiff’s ejectment request. Id. at ¶ 33.
Although grounded in statutory law, there are a number of Illinois cases related to ejectment that further interpret the ejectment statute and provide guidance for an attorney looking to successfully plead and prove an ejectment action.
For additional reading on ejectment actions see:
Cree Development Corp. v. Mid-America Advertising Co., 294 Ill.App.3d 324 (5th Dist. 1997);
Parks v. Parks, 2019 IL App (3d) 170845;
Dagit v. Childerson, 391 Ill. 611 (1945).
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