Category: Resources

PARTITION OF LAND: WHAT HAPPENS WHEN ALL OTHER OPTIONS FAIL.

PARTITION OF LAND: WHAT HAPPENS WHEN ALL OTHER OPTIONS FAIL.

A partition of land is to divide it.  In other words, to split one piece of property into two parts or more.  Illinois courts do not like dividing land.  It can cause more problems than it actually solves.

Partitions of land are often used as a last resort.  For example, a married couple owns a parcel of property.  Each has a ½ interest in this property.  Then this couple files for divorce.

The couple cannot agree on who will get the property in the divorce settlement.  As a result, the wife files an action to divide the land equally,

 

Planning on buying or selling property?  Local attorney Andrew Szocka provides thorough and speedy real estate and estate planning help 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.

 

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.

QUIET TITLE: A CAUSE OF ACTION WITH STRICT REQUIREMENTS

QUIET TITLE: A CAUSE OF ACTION WITH STRICT REQUIREMENTS

An action to Quiet Title is a useful tool to yield clear and marketable title.  But it is more than an action for a Declaratory Judgment that asks the court to remove a cloud on title.  A Quiet Title count has strict pleading requirements.

The elements of a claim to Quiet Title are that 1) the party bringing the action possesses true title to the property, and 2) the title must be superior to other claimants.  Dudley v. Neteler, 392 Ill.App.3d 140, 143 (4th Dist. 2009).  In other words, a Quiet Title action may be maintained only when one holds a legal or equitable interest in property that is superior to the alleged title defect.  Antoniou v. Heartland Bank and Trust Co., 2015 IL App (1st) 150015-U at ⁋ 18.  One reprieve is that a party need not establish a perfect title to prevail.  Id.

There is a final, sometimes overlooked, element for a claim to Quiet Title.  The party must plead, and ultimately prove in order to prevail, that it is in possession of the subject property.  Dodge v. Nieman, 150 Ill.App.3d 857, 860 (1st Dist. 1986).  While possession by an agent or tenant of the party is sufficient, failure to plead actual possession leaves a Quiet Title complaint subject to dismissal.  Id. at 860-63.

A Quiet Title claim can similarly fail at the summary judgment stage.  See Floyd v. Hill Funding, LLC, 2020 IL App (1st) 192353-U.  In Floyd, plaintiff entered into an installment contract to purchase certain property in Chicago, Illinois.  Id. at ⁋ 3.  Upon payment of all installments, plaintiff would be entitled to conveyance of the property.  Id.

Plaintiff failed to make all payments under the installment contract.  Id. at ⁋ 5.  Plaintiff’s claim to quiet title against the property’s owner ultimately failed and defendant was awarded summary judgment.  Id.  The court ruled that plaintiff’s interest in the property via the installment contract, was not superior to that of the property’s owner of record.  Id.

On the other hand, a property pled Quiet Title claim can result in clear and marketable title.  See North Community Bank v. Aetna Bank, 200 Ill.App.3d 350 (1st Dist. 1990).  In North Community Bank, defendant was given a mortgage by the successful bidder at a foreclosure sale.  Id. at 351.  However, the deed to the successfully bidder contained significant defects in the property’s legal description.  Id.

Defendant then gave a mortgage to plaintiff.  Id. at 352.  When defendant defaulted under the terms of that mortgage, plaintiff filed an action to foreclose its mortgage and quiet title as to any interest of the successful bidder at the foreclosure sale.  Id.  The court ruled that the successful bidder’s claim to the property was not superior to plaintiff’s claim.  Id. at 353-54.  As a result, plaintiff was granted summary judgment.  Id.

Case law indicates that Illinois courts are strict when it comes to pleading a cause of action to Quiet Title.  However, if a party pleads the necessary elements, and has a claim to the property that is superior to others, that party can successfully clear a property’s title.

For additional reading on Quieting Title see:

 

Jody D. v. Bank of America, N.A., 2018 IL App (3d) 170558-U;

Chicago Title Land Trust Co. v. Iverson, 2016 IL App (1st) 150986-U;

McElmeel v. Shedelbower, 2013 IL App (5th) 130042-U.

QUIET TITLE: A USEFUL TOOL IN RESOLVING PROPERTY TITLE ISSUES

QUIET TITLE: A USEFUL TOOL IN RESOLVING PROPERTY TITLE ISSUES

The act of Quieting Title on property is intended to produce clear and marketable title.  If a property’s title is not clear and marketable it likely has a title defect, also known as a “cloud.”  Title defects are called clouds because the defect may obscure the property’s true owner or reflect that a party has an interest in property when it actually does not.

Clouds on title include deeds that break an otherwise clear chain of conveyances or an unreleased mortgage that secures a loan that was actually paid off.

Clouds on title are often discovered when property is being sold.  Sellers almost always have a contractual obligation to transfer clear title to the buyer.  As a result, the seller obtains a title insurance company to search the property’s title history.  If a cloud on title appears, it may need to be resolved with an action to Quiet Title.

The seller, often through an attorney, files a Complaint to Quiet Title in the Illinois Judicial Circuit where the property is located.  The Complaint explains the cloud on title and why it should be removed.  The court then determines whether or not the cloud is a legitimate claim on the property.  If the cloud is not legitimate, the court issues an order removing the cloud from the property’s title history.

For example, you attempt to refinance the current loan that you used to buy your property.  The new loan will be secured by a new mortgage.  But before your lender provides the new loan, it uses a title insurance company to check your property’s title.  Although unlikely, it is possible that the lender’s title insurance company finds an old mortgage recorded against your property that was given by a previous owner.

A Complaint to Quiet Title would allege that the loan secured by the old mortgage was actually paid off.  As a result, the holder of the old mortgage should have released it from your property’s record.  The old mortgage is still of record by mistake.

In this case, the court hearing your Quiet Title action is highly likely to order the old mortgage released from your property’s title history.

Having a good attorney can help further understand how to Quiet Title and whether it is necessary to resolve any clouds on your property’s title.

 

Getting a Real Estate Lawyer in Illinois

Real Estate is a Key

For most area families, real estate represents major purchases and investments. It is important to use the purchase or sale of real estate for residence or business purposes to improve financial security. Purchase arrangements are critical, and most sellers and buyers benefit from the assistance of an experienced real estate attorney. Unlike all other parties in the transaction, your attorney is on your side, and he or she is there to protect and promote your interests. Business or commercial real estate transactions can be complicated involving important details about business structures, taxes, regulations, liens, and obligations.

Getting a Real Estate Lawyer in Illinois

Estate Planning

Estate planning should begin early in one’s work career. The goals of accumulating wealth and creating a comfortable lifestyle include preparation for taking care of the family during work and into retirement.

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***This is not intended to be legal advice and you should consult with an attorney.