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| | 100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB3208 Introduced 2/15/2018, by Sen. Steve Stadelman SYNOPSIS AS INTRODUCED:
| | 65 ILCS 5/11-31-1 | from Ch. 24, par. 11-31-1 |
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Amends the Illinois Municipal Code. Makes a technical change in a Section
concerning the demolition, repair, enclosure, or remediation of dangerous and
unsafe buildings.
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| | | FISCAL NOTE ACT MAY APPLY | | HOUSING AFFORDABILITY IMPACT NOTE ACT MAY APPLY |
| | A BILL FOR |
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| 1 | | AN ACT concerning property.
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| 2 | | Be it enacted by the People of the State of Illinois, |
| 3 | | represented in the General Assembly:
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| 4 | | Section 5. The Illinois Municipal Code is amended by |
| 5 | | changing Section 11-31-1 as follows:
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| 6 | | (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
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| 7 | | Sec. 11-31-1. Demolition, repair, enclosure, or |
| 8 | | remediation.
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| 9 | | (a) The
The corporate authorities of each municipality may |
| 10 | | demolish, repair,
or enclose or cause the demolition, repair, |
| 11 | | or enclosure of
dangerous and unsafe buildings or uncompleted |
| 12 | | and abandoned buildings
within the territory of the |
| 13 | | municipality and may remove or cause the
removal of garbage, |
| 14 | | debris, and other hazardous, noxious, or unhealthy
substances |
| 15 | | or materials from those buildings. In any county
having adopted |
| 16 | | by referendum or otherwise a county health department as
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| 17 | | provided by Division 5-25 of the Counties Code or its |
| 18 | | predecessor, the
county board of that county may exercise those |
| 19 | | powers with regard to
dangerous and unsafe buildings or |
| 20 | | uncompleted and abandoned buildings
within the territory of any |
| 21 | | city, village, or incorporated town having less
than 50,000 |
| 22 | | population. |
| 23 | | The corporate authorities shall apply to the circuit court |
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| 1 | | of the county
in which the building is located (i) for an order |
| 2 | | authorizing action to
be taken with respect to a building if |
| 3 | | the owner or owners of the building,
including the lien holders |
| 4 | | of record, after at least 15 days' written
notice by mail so to |
| 5 | | do, have failed to put the building in a safe
condition or to |
| 6 | | demolish it or (ii) for an order requiring the owner or
owners |
| 7 | | of record to demolish, repair, or enclose the building or to |
| 8 | | remove
garbage, debris, and other hazardous, noxious, or |
| 9 | | unhealthy substances or
materials from the building. It is not |
| 10 | | a defense to the cause of action
that the building is boarded |
| 11 | | up or otherwise enclosed, although the court
may order the |
| 12 | | defendant to have the building boarded up or otherwise
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| 13 | | enclosed. Where, upon diligent search, the identity or |
| 14 | | whereabouts of the
owner or owners of the building, including |
| 15 | | the lien holders of record,
is not ascertainable, notice mailed |
| 16 | | to the person or persons in whose name
the real estate was last |
| 17 | | assessed is sufficient notice under this Section.
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| 18 | | The hearing upon the application to the circuit court shall |
| 19 | | be expedited
by the court and shall be given precedence over |
| 20 | | all other suits.
Any person entitled to bring an action under |
| 21 | | subsection (b) shall have
the right to intervene in an action |
| 22 | | brought under this Section.
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| 23 | | The cost of the demolition, repair, enclosure, or removal |
| 24 | | incurred by
the municipality, by an intervenor, or by a lien |
| 25 | | holder of record,
including court costs, attorney's fees, and |
| 26 | | other costs related to the
enforcement of this Section, is |
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| 1 | | recoverable from the owner or owners of
the real estate or the |
| 2 | | previous owner or both if the property was transferred
during |
| 3 | | the 15 day notice period and is a lien on the real estate; the |
| 4 | | lien is
superior to all prior existing liens and encumbrances, |
| 5 | | except taxes, if, within
180 days after the repair, demolition, |
| 6 | | enclosure, or removal, the municipality,
the lien holder of |
| 7 | | record, or the intervenor who incurred the cost and expense
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| 8 | | shall file a notice of lien for the cost and expense incurred |
| 9 | | in the office of
the recorder in the county in which the real |
| 10 | | estate is located or in the office
of the registrar of titles |
| 11 | | of the county if the real estate affected is
registered under |
| 12 | | the Registered Titles (Torrens) Act.
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| 13 | | The notice must consist of a sworn statement setting out |
| 14 | | (1) a
description of the real estate sufficient for its |
| 15 | | identification, (2)
the amount of money representing the cost |
| 16 | | and expense incurred, and (3) the
date or dates when the cost |
| 17 | | and expense was incurred by the municipality,
the lien holder |
| 18 | | of record, or the intervenor. Upon payment of the cost and
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| 19 | | expense by the owner of or persons interested in the property |
| 20 | | after the
notice of lien has been filed, the lien shall be |
| 21 | | released by the
municipality, the person in whose name the lien |
| 22 | | has been filed, or the
assignee of the lien, and the release |
| 23 | | may be filed of record as in the case
of filing notice of lien. |
| 24 | | Unless the lien is enforced under subsection (c),
the lien may |
| 25 | | be enforced by foreclosure proceedings as in the case of
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| 26 | | mortgage foreclosures under Article XV of the Code of Civil |
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| 1 | | Procedure or
mechanics' lien foreclosures. An action to |
| 2 | | foreclose this lien
may be commenced at any time after the date |
| 3 | | of filing of the notice of
lien. The costs of foreclosure |
| 4 | | incurred by the municipality, including
court costs, |
| 5 | | reasonable attorney's fees, advances to preserve the property,
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| 6 | | and other costs related to the enforcement of this subsection, |
| 7 | | plus
statutory interest, are a lien on the real estate and are |
| 8 | | recoverable by
the municipality from the owner or owners of the |
| 9 | | real estate.
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| 10 | | All liens arising under this subsection (a) shall be |
| 11 | | assignable.
The assignee of the lien shall have the same power |
| 12 | | to enforce the lien
as the assigning party, except that the |
| 13 | | lien may not be
enforced under subsection (c).
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| 14 | | If the appropriate official of any municipality determines |
| 15 | | that any
dangerous and unsafe building or uncompleted and |
| 16 | | abandoned building within
its territory fulfills the |
| 17 | | requirements for an action by the municipality
under the |
| 18 | | Abandoned Housing Rehabilitation Act, the municipality may
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| 19 | | petition under that Act in a proceeding brought under this |
| 20 | | subsection.
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| 21 | | (b) Any owner or tenant of real property within 1200 feet |
| 22 | | in any
direction of any dangerous or unsafe building located |
| 23 | | within the territory
of a municipality with a population of |
| 24 | | 500,000 or more may file with the
appropriate municipal |
| 25 | | authority a request that the municipality apply to
the circuit |
| 26 | | court of the county in which the building is located for an
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| 1 | | order permitting the demolition, removal of garbage, debris, |
| 2 | | and other
noxious or unhealthy substances and materials from, |
| 3 | | or repair or enclosure of
the building in the manner prescribed |
| 4 | | in subsection (a) of this Section.
If the municipality fails to |
| 5 | | institute an action in circuit court within 90
days after the |
| 6 | | filing of the request, the owner or tenant of real property
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| 7 | | within 1200 feet in any direction of the building may institute |
| 8 | | an action
in circuit court seeking an order compelling the |
| 9 | | owner or owners of record
to demolish, remove garbage, debris, |
| 10 | | and other noxious or unhealthy
substances and materials from, |
| 11 | | repair or enclose or to cause to be
demolished, have garbage, |
| 12 | | debris, and other noxious or unhealthy substances
and materials |
| 13 | | removed from, repaired, or enclosed the building in question.
A |
| 14 | | private owner or tenant who institutes an action under the |
| 15 | | preceding sentence
shall not be required to pay any fee to the |
| 16 | | clerk of the circuit court.
The cost of repair, removal, |
| 17 | | demolition, or enclosure shall be borne by
the owner or owners |
| 18 | | of record of the building. In the event the owner or
owners of |
| 19 | | record fail to demolish, remove garbage, debris, and other |
| 20 | | noxious
or unhealthy substances and materials from, repair, or |
| 21 | | enclose the building
within 90 days of the date the court |
| 22 | | entered its order, the owner or tenant
who instituted the |
| 23 | | action may request that the court join the municipality
as a |
| 24 | | party to the action. The court may order the municipality to |
| 25 | | demolish,
remove materials from, repair, or enclose the |
| 26 | | building, or cause that action to
be taken upon the request of |
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| 1 | | any owner or tenant who instituted the action or
upon the |
| 2 | | municipality's request. The municipality may file, and the |
| 3 | | court may
approve, a plan for rehabilitating the building in |
| 4 | | question. A court order
authorizing the municipality to |
| 5 | | demolish, remove materials from, repair, or
enclose a building, |
| 6 | | or cause that action to be taken, shall not preclude the
court |
| 7 | | from adjudging the owner or owners of record of the building in |
| 8 | | contempt
of court due to the failure to comply with the order |
| 9 | | to demolish, remove
garbage, debris, and other noxious or |
| 10 | | unhealthy substances and materials from,
repair, or enclose the |
| 11 | | building.
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| 12 | | If a municipality or a person or persons other than the |
| 13 | | owner or
owners of record pay the cost of demolition, removal |
| 14 | | of garbage, debris, and
other noxious or unhealthy substances |
| 15 | | and materials, repair, or enclosure
pursuant to a court order, |
| 16 | | the cost, including court costs, attorney's fees,
and other |
| 17 | | costs related to the enforcement of this subsection, is
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| 18 | | recoverable from the owner or owners of the real estate and is |
| 19 | | a lien
on the real estate; the lien is superior to all prior |
| 20 | | existing liens and
encumbrances, except taxes, if, within 180 |
| 21 | | days after the
repair, removal, demolition, or enclosure, the |
| 22 | | municipality or the person or
persons who paid the costs of |
| 23 | | demolition, removal, repair, or enclosure
shall file a notice |
| 24 | | of lien of the cost and expense incurred in the office
of the |
| 25 | | recorder in the county in which the real estate is located or |
| 26 | | in the
office of the registrar of the county if the real estate |
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| 1 | | affected is
registered under the Registered Titles (Torrens) |
| 2 | | Act. The notice shall be
in a form as is provided in subsection |
| 3 | | (a). An owner or tenant who
institutes an action in circuit |
| 4 | | court seeking an order to compel the owner
or owners of record |
| 5 | | to demolish, remove materials from, repair, or enclose any
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| 6 | | dangerous or unsafe building, or to cause that action to be |
| 7 | | taken under this
subsection may recover court costs and |
| 8 | | reasonable attorney's fees for
instituting the action from the |
| 9 | | owner or owners of record of the building.
Upon payment of the |
| 10 | | costs and expenses by the owner of or a person
interested in |
| 11 | | the property after the notice of lien has been filed, the
lien |
| 12 | | shall be released by the municipality or the person in whose |
| 13 | | name the
lien has been filed or his or her assignee, and the |
| 14 | | release may be filed of
record as in the case of filing a |
| 15 | | notice of lien. Unless the lien is
enforced under subsection |
| 16 | | (c), the lien may be enforced by foreclosure
proceedings as in |
| 17 | | the case of mortgage foreclosures under Article XV of the
Code |
| 18 | | of Civil Procedure or mechanics' lien foreclosures. An action |
| 19 | | to
foreclose this lien may be commenced at any time after the |
| 20 | | date of filing
of the notice of lien. The costs of foreclosure |
| 21 | | incurred by the
municipality, including court costs, |
| 22 | | reasonable attorneys' fees, advances
to preserve the property, |
| 23 | | and other costs related to the enforcement of
this subsection, |
| 24 | | plus statutory interest, are a lien on the real estate
and are |
| 25 | | recoverable by the municipality from the owner or owners of the
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| 26 | | real estate.
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| 1 | | All liens arising under the terms of this subsection (b) |
| 2 | | shall be
assignable. The assignee of the lien shall have the |
| 3 | | same power to
enforce the lien as the assigning party, except |
| 4 | | that the lien may not be
enforced under subsection (c).
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| 5 | | (c) In any case where a municipality has obtained a lien |
| 6 | | under
subsection (a), (b), or (f), the municipality may enforce |
| 7 | | the
lien
under
this subsection (c) in the same proceeding in |
| 8 | | which the lien is authorized.
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| 9 | | A municipality desiring to enforce a lien under this |
| 10 | | subsection (c) shall
petition the court to retain jurisdiction |
| 11 | | for foreclosure proceedings under
this subsection. Notice of |
| 12 | | the petition shall be served, by certified or
registered mail, |
| 13 | | on all persons who were served notice under subsection
(a), |
| 14 | | (b), or (f). The court shall conduct a hearing on the petition |
| 15 | | not
less than 15
days after the notice is served. If the court |
| 16 | | determines that the
requirements of this subsection (c) have |
| 17 | | been satisfied, it shall grant the
petition and retain |
| 18 | | jurisdiction over the matter until the foreclosure
proceeding |
| 19 | | is completed. The costs of foreclosure incurred by the
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| 20 | | municipality, including court costs, reasonable attorneys' |
| 21 | | fees, advances
to preserve the property, and other costs |
| 22 | | related to the enforcement of
this subsection, plus statutory |
| 23 | | interest, are a lien on the real estate and
are recoverable by |
| 24 | | the municipality from the owner or owners of the real
estate. |
| 25 | | If the court denies the petition, the municipality may enforce |
| 26 | | the
lien in a separate action as provided in subsection (a), |
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| 1 | | (b), or
(f).
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| 2 | | All persons designated in Section 15-1501 of the Code of |
| 3 | | Civil Procedure
as necessary parties in a mortgage foreclosure |
| 4 | | action shall be joined as
parties before issuance of an order |
| 5 | | of foreclosure. Persons designated
in Section 15-1501 of the |
| 6 | | Code of Civil Procedure as permissible parties
may also be |
| 7 | | joined as parties in the action.
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| 8 | | The provisions of Article XV of the Code of Civil Procedure |
| 9 | | applicable to
mortgage foreclosures shall apply to the |
| 10 | | foreclosure of a lien under
this subsection (c), except to the |
| 11 | | extent that those provisions are
inconsistent with this |
| 12 | | subsection. For purposes of foreclosures
of liens under this |
| 13 | | subsection, however, the redemption period described in
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| 14 | | subsection (b) of Section 15-1603 of the Code of Civil |
| 15 | | Procedure shall end
60 days after the date of entry of the |
| 16 | | order of foreclosure.
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| 17 | | (d) In addition to any other remedy provided by law, the |
| 18 | | corporate
authorities of any municipality may petition the |
| 19 | | circuit court to have
property declared abandoned under this |
| 20 | | subsection (d) if:
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| 21 | | (1) the property has been tax delinquent for 2 or more |
| 22 | | years or bills
for water service for the property have been |
| 23 | | outstanding for 2 or more years;
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| 24 | | (2) the property is unoccupied by persons legally in |
| 25 | | possession; and
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| 26 | | (3) the property contains a dangerous or unsafe |
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| 1 | | building for reasons specified in the petition.
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| 2 | | All persons having an interest of record in the property, |
| 3 | | including tax
purchasers and beneficial owners of any Illinois |
| 4 | | land trust having title to
the property, shall be named as |
| 5 | | defendants in the petition and shall be
served with process. In |
| 6 | | addition, service shall be had under Section
2-206 of the Code |
| 7 | | of Civil Procedure as in other cases affecting property.
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| 8 | | The municipality, however, may proceed under this |
| 9 | | subsection in a
proceeding brought under subsection (a) or (b). |
| 10 | | Notice of the petition
shall be served in person or by |
| 11 | | certified or registered mail on all persons who were
served |
| 12 | | notice under subsection (a) or (b).
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| 13 | | If the municipality proves that the conditions described in |
| 14 | | this
subsection exist and (i) the owner of record of the |
| 15 | | property does not enter
an appearance in the action, or, if |
| 16 | | title to the property is held by an
Illinois land trust, if |
| 17 | | neither the owner of record nor the owner of the
beneficial |
| 18 | | interest of the trust enters an appearance, or (ii) if the |
| 19 | | owner of record or the beneficiary of a land trust, if title to |
| 20 | | the property is held by an Illinois land trust, enters an |
| 21 | | appearance and specifically waives his or her rights under this |
| 22 | | subsection (d), the court
shall declare the property abandoned. |
| 23 | | Notwithstanding any waiver, the municipality may move to |
| 24 | | dismiss its petition at any time. In addition, any waiver in a |
| 25 | | proceeding under this subsection (d) does not serve as a waiver |
| 26 | | for any other proceeding under law or equity.
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| 1 | | If that determination is made, notice shall be sent in |
| 2 | | person or by certified or
registered mail to all persons having |
| 3 | | an interest of record in the
property, including tax purchasers |
| 4 | | and beneficial owners of any Illinois
land trust having title |
| 5 | | to the property, stating that title to the
property will be |
| 6 | | transferred to the municipality unless, within 30 days of
the |
| 7 | | notice, the owner of record or any other person having an |
| 8 | | interest in the property files with the
court a request to |
| 9 | | demolish the dangerous or unsafe building or to put the
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| 10 | | building in safe condition, or unless the owner of record |
| 11 | | enters an appearance and proves that the owner does not intend |
| 12 | | to abandon the property.
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| 13 | | If the owner of record enters an appearance in the action |
| 14 | | within the 30
day period, but does not at that time file with |
| 15 | | the court a request to demolish the dangerous or unsafe |
| 16 | | building or to put the building in safe condition, or |
| 17 | | specifically waive his or her rights under this subsection (d), |
| 18 | | the court shall vacate its order declaring the property
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| 19 | | abandoned if it determines that the owner of record does not |
| 20 | | intend to abandon the property. In that case, the municipality |
| 21 | | may amend its complaint in order
to initiate proceedings under |
| 22 | | subsection (a), or it may request that the court order the |
| 23 | | owner to demolish the building or repair the dangerous or |
| 24 | | unsafe conditions of the building alleged in the petition or |
| 25 | | seek the appointment of a receiver or other equitable relief to |
| 26 | | correct the conditions at the property. The powers and rights |
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| 1 | | of a receiver appointed under this subsection (d) shall include |
| 2 | | all of the powers and rights of a receiver appointed under |
| 3 | | Section 11-31-2 of this Code.
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| 4 | | If a request to demolish or repair the building is filed |
| 5 | | within the 30
day period, the court shall grant permission to |
| 6 | | the requesting party to
demolish the building within 30 days or |
| 7 | | to restore the building to safe
condition within 60 days after |
| 8 | | the request is granted. An extension of
that period for up to |
| 9 | | 60 additional days may be given for good cause. If
more than |
| 10 | | one person with an interest in the property files a timely
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| 11 | | request, preference shall be given to the owner of record if |
| 12 | | the owner filed a request or, if the owner did not, the person |
| 13 | | with the lien or other
interest of the highest priority.
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| 14 | | If the requesting party (other than the owner of record) |
| 15 | | proves to the court that the building has been
demolished or |
| 16 | | put in a safe condition in accordance with the local safety |
| 17 | | codes within the period of time granted by
the court, the court |
| 18 | | shall issue a quitclaim judicial deed for the
property to the |
| 19 | | requesting party, conveying only the interest of the owner
of |
| 20 | | record, upon proof of payment to the municipality of all costs |
| 21 | | incurred
by the municipality in connection with the action, |
| 22 | | including but not
limited to court costs, attorney's fees, |
| 23 | | administrative costs, the
costs, if any, associated with |
| 24 | | building enclosure or removal, and receiver's
certificates. |
| 25 | | The interest in the property so conveyed shall be subject to
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| 26 | | all liens and encumbrances on the property. In addition, if the |
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| 1 | | interest is
conveyed to a person holding a certificate of |
| 2 | | purchase for the property
under the Property Tax Code, the |
| 3 | | conveyance shall
be subject to the rights of redemption of all |
| 4 | | persons entitled to redeem under
that Act, including the |
| 5 | | original owner of record. If the requesting party is the owner |
| 6 | | of record and proves to the court that the building has been |
| 7 | | demolished or put in a safe condition in accordance with the |
| 8 | | local safety codes within the period of time granted by the |
| 9 | | court, the court shall dismiss the proceeding under this |
| 10 | | subsection (d).
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| 11 | | If the owner of record has not entered an appearance and |
| 12 | | proven that the owner did not intend to abandon the property, |
| 13 | | and if no person with an interest in the property files a |
| 14 | | timely request or
if the requesting party fails to demolish the |
| 15 | | building or put the building
in safe condition within the time |
| 16 | | specified by the court, the municipality
may petition the court |
| 17 | | to issue a judicial deed for the property to the
municipality. |
| 18 | | A conveyance by judicial deed shall operate to extinguish
all |
| 19 | | existing ownership interests in, liens on, and other interest |
| 20 | | in the
property, including tax liens, and shall extinguish the |
| 21 | | rights and
interests of any and all holders of a bona fide |
| 22 | | certificate of purchase of the
property for delinquent taxes. |
| 23 | | Any such bona fide certificate of purchase
holder shall be
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| 24 | | entitled to a sale in error as prescribed under Section 21-310 |
| 25 | | of the Property
Tax Code.
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| 26 | | (e) Each municipality may use the provisions of this |
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| 1 | | subsection to expedite
the removal
of certain buildings that |
| 2 | | are a continuing hazard to the community in which
they are |
| 3 | | located.
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| 4 | | If a residential or commercial building is 3 stories or |
| 5 | | less in height as
defined by the
municipality's building code, |
| 6 | | and the corporate official designated to be
in charge of |
| 7 | | enforcing the municipality's building code determines that the
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| 8 | | building is open and vacant and an immediate and continuing |
| 9 | | hazard to the
community in which the building is located, then |
| 10 | | the official shall be
authorized to post a notice not less than |
| 11 | | 2 feet by 2 feet in size on the
front of the building. The |
| 12 | | notice shall be dated as of the date of the
posting and shall |
| 13 | | state that unless the building is demolished, repaired,
or |
| 14 | | enclosed, and unless any garbage, debris, and other hazardous, |
| 15 | | noxious,
or unhealthy substances or materials are removed so |
| 16 | | that an immediate and
continuing hazard to the community no |
| 17 | | longer exists, then the building may
be demolished, repaired, |
| 18 | | or enclosed, or any garbage, debris, and other
hazardous, |
| 19 | | noxious, or unhealthy substances or materials may be removed, |
| 20 | | by
the municipality.
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| 21 | | Not later than 30 days following the posting of the notice, |
| 22 | | the
municipality shall do all of the following:
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| 23 | | (1) Cause to be sent, by certified mail, return receipt |
| 24 | | requested,
a Notice to Remediate to all owners of
record of |
| 25 | | the property, the beneficial owners of any Illinois land |
| 26 | | trust
having title to the property, and all lienholders of |
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| 1 | | record in the property,
stating the intent of the |
| 2 | | municipality to demolish,
repair, or enclose the building |
| 3 | | or remove any garbage, debris, or other
hazardous, noxious, |
| 4 | | or unhealthy substances or materials if that action is
not |
| 5 | | taken by the owner or owners.
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| 6 | | (2) Cause to be published, in a newspaper published or |
| 7 | | circulated in the
municipality where the building is |
| 8 | | located, a notice setting forth (i)
the permanent tax index |
| 9 | | number and the address of the building, (ii) a
statement |
| 10 | | that the property is open and vacant and constitutes an |
| 11 | | immediate and
continuing hazard to the community, and (iii) |
| 12 | | a statement that the municipality
intends to demolish, |
| 13 | | repair, or enclose the building or remove any garbage,
|
| 14 | | debris, or other hazardous, noxious, or unhealthy |
| 15 | | substances or materials if
the owner or owners or |
| 16 | | lienholders of record fail to do so. This notice shall
be |
| 17 | | published for 3 consecutive days.
|
| 18 | | (3) Cause to be recorded the Notice to Remediate mailed |
| 19 | | under paragraph
(1) in
the office of the recorder in the |
| 20 | | county in which the real estate is located or
in the
office |
| 21 | | of the registrar of titles of the county if the real estate |
| 22 | | is
registered under the
Registered Title (Torrens) Act.
|
| 23 | | Any person or persons with a current legal or equitable |
| 24 | | interest in the
property objecting to the proposed actions of |
| 25 | | the corporate authorities may
file his or her objection in an |
| 26 | | appropriate form in a court of competent
jurisdiction.
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| 1 | | If the building is not demolished, repaired, or enclosed, |
| 2 | | or the garbage,
debris, or other hazardous, noxious, or |
| 3 | | unhealthy substances or materials are
not removed, within 30 |
| 4 | | days of mailing the notice to the owners of record,
the |
| 5 | | beneficial owners of any Illinois land trust having title to |
| 6 | | the
property, and all lienholders of record in the property, or
|
| 7 | | within 30 days of the last day of publication of the notice, |
| 8 | | whichever is
later, the corporate authorities shall have the |
| 9 | | power to demolish, repair, or
enclose the building or to remove |
| 10 | | any garbage, debris, or other hazardous,
noxious, or unhealthy |
| 11 | | substances or materials.
|
| 12 | | The municipality may proceed to demolish, repair, or |
| 13 | | enclose a building
or remove any garbage, debris, or other |
| 14 | | hazardous, noxious, or unhealthy
substances or materials under |
| 15 | | this subsection within a 120-day period
following the date of |
| 16 | | the mailing of the notice if the appropriate official
|
| 17 | | determines that the demolition, repair, enclosure, or removal |
| 18 | | of any garbage,
debris, or other hazardous, noxious, or |
| 19 | | unhealthy substances or materials is
necessary to remedy the |
| 20 | | immediate and continuing hazard. If, however, before
the |
| 21 | | municipality proceeds with any of the actions authorized by |
| 22 | | this
subsection, any person with a legal or equitable interest |
| 23 | | in the property has
sought a hearing under this subsection |
| 24 | | before a
court and has served a copy of the complaint on the |
| 25 | | chief executive officer of
the municipality, then the |
| 26 | | municipality shall not proceed with the demolition,
repair, |
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| 1 | | enclosure, or removal of garbage, debris, or other substances |
| 2 | | until the
court determines that that action is necessary to |
| 3 | | remedy the hazard and issues
an order authorizing the |
| 4 | | municipality to do so.
If the court dismisses the action for |
| 5 | | want of prosecution, the municipality
must send the objector a |
| 6 | | copy of the dismissal
order and a letter stating that the |
| 7 | | demolition, repair, enclosure, or
removal of garbage, debris, |
| 8 | | or other substances will proceed unless, within 30
days after |
| 9 | | the copy of the order and the letter are mailed, the
objector
|
| 10 | | moves to vacate the dismissal and serves a
copy of the
motion |
| 11 | | on the chief executive officer of the municipality. |
| 12 | | Notwithstanding
any other law to the contrary, if the objector |
| 13 | | does not file a motion and give
the required notice, if the |
| 14 | | motion is denied by the court, or if the action is
again |
| 15 | | dismissed for want of prosecution, then the dismissal is with |
| 16 | | prejudice
and the demolition, repair, enclosure, or removal may |
| 17 | | proceed forthwith.
|
| 18 | | Following the demolition, repair, or enclosure of a |
| 19 | | building, or the
removal of garbage, debris, or other |
| 20 | | hazardous, noxious, or unhealthy
substances or materials under |
| 21 | | this subsection, the municipality may file a
notice of lien |
| 22 | | against the real estate for the cost of the demolition,
repair, |
| 23 | | enclosure, or removal within 180 days after the repair, |
| 24 | | demolition,
enclosure, or removal occurred, for the cost and |
| 25 | | expense incurred, in the
office of the recorder in the county |
| 26 | | in which the real estate is located or
in the office of the |
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| 1 | | registrar of titles of the county if the real estate
affected |
| 2 | | is registered under the Registered Titles (Torrens) Act; this
|
| 3 | | lien has priority over the interests of those parties named in |
| 4 | | the
Notice to
Remediate mailed under paragraph (1), but not |
| 5 | | over the interests of third party
purchasers
or encumbrancers |
| 6 | | for value who obtained their interests in the property before
|
| 7 | | obtaining
actual or constructive notice of the lien.
The
notice |
| 8 | | of lien shall consist of a sworn statement setting forth (i) a
|
| 9 | | description of the real estate, such as the address or other |
| 10 | | description of
the property, sufficient for its |
| 11 | | identification; (ii) the expenses incurred
by the municipality |
| 12 | | in undertaking the remedial actions authorized under
this |
| 13 | | subsection; (iii) the date or dates the expenses were incurred |
| 14 | | by
the municipality; (iv) a statement by the corporate official
|
| 15 | | responsible for enforcing the building code that the building |
| 16 | | was open and
vacant and constituted an immediate and continuing |
| 17 | | hazard
to the community; (v) a statement by the corporate |
| 18 | | official that the
required sign was posted on the building, |
| 19 | | that notice was sent by certified
mail to the owners of record, |
| 20 | | and that notice was published in accordance
with this |
| 21 | | subsection; and (vi) a statement as to when and where the |
| 22 | | notice
was published. The lien authorized by this subsection |
| 23 | | may thereafter be
released or enforced by the municipality as |
| 24 | | provided in subsection (a).
|
| 25 | | (f) The corporate authorities of each municipality may |
| 26 | | remove or cause the
removal of, or otherwise environmentally |
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| 1 | | remediate hazardous substances and
petroleum products on, in,
|
| 2 | | or under any abandoned and unsafe property within the territory |
| 3 | | of a
municipality. In addition, where preliminary evidence |
| 4 | | indicates the presence
or likely presence of a hazardous |
| 5 | | substance or a petroleum product or a release
or a substantial
|
| 6 | | threat of a release of a hazardous substance or a petroleum |
| 7 | | product on, in, or
under the property, the
corporate |
| 8 | | authorities of the municipality may inspect the property and |
| 9 | | test for
the presence or release of hazardous substances and |
| 10 | | petroleum products. In any
county having adopted
by referendum |
| 11 | | or otherwise a county health department as provided by Division
|
| 12 | | 5-25 of the Counties Code or its predecessor, the county board |
| 13 | | of that county
may exercise the above-described powers with |
| 14 | | regard to property within the
territory of any city, village, |
| 15 | | or incorporated town having less than 50,000
population.
|
| 16 | | For purposes of this subsection (f):
|
| 17 | | (1) "property" or "real estate" means all real |
| 18 | | property, whether or
not improved by a structure;
|
| 19 | | (2) "abandoned" means;
|
| 20 | | (A) the property has been tax delinquent for 2 or |
| 21 | | more years;
|
| 22 | | (B) the property is unoccupied by persons legally |
| 23 | | in possession; and
|
| 24 | | (3) "unsafe" means property that presents an actual or |
| 25 | | imminent
threat to public health and safety caused by
the |
| 26 | | release of hazardous substances; and
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| 1 | | (4) "hazardous substances" means the same as in Section |
| 2 | | 3.215 of the
Environmental Protection Act.
|
| 3 | | The corporate authorities shall apply to the circuit court |
| 4 | | of the county in
which the property is located (i) for an order |
| 5 | | allowing the municipality to
enter the property and inspect and |
| 6 | | test substances on, in, or under
the property; or (ii) for an |
| 7 | | order authorizing the
corporate authorities to take action with |
| 8 | | respect to remediation of the
property if conditions on the |
| 9 | | property, based on the inspection and testing
authorized in |
| 10 | | paragraph (i), indicate the presence of hazardous substances or
|
| 11 | | petroleum products.
Remediation shall be deemed
complete for |
| 12 | | purposes of
paragraph (ii) above when the property satisfies |
| 13 | | Tier
I,
II, or
III
remediation objectives for the property's |
| 14 | | most recent usage, as established by
the Environmental |
| 15 | | Protection Act, and the rules and regulations promulgated
|
| 16 | | thereunder. Where, upon diligent search, the identity or |
| 17 | | whereabouts of the
owner or owners of the property, including |
| 18 | | the lien holders of record, is not
ascertainable, notice mailed |
| 19 | | to the person or persons in whose name the real
estate was last |
| 20 | | assessed is sufficient notice under this Section.
|
| 21 | | The court shall grant an order authorizing testing under |
| 22 | | paragraph (i) above
upon a
showing of preliminary evidence |
| 23 | | indicating the presence or likely presence of a
hazardous |
| 24 | | substance or a petroleum product or a release of
or a |
| 25 | | substantial threat of a release of a hazardous substance or a |
| 26 | | petroleum
product on, in, or under
abandoned property. The |
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| 1 | | preliminary evidence may include, but is not limited
to, |
| 2 | | evidence of prior use, visual site inspection, or records of |
| 3 | | prior
environmental investigations. The testing authorized by |
| 4 | | paragraph (i) above
shall include any type of investigation |
| 5 | | which is necessary for an environmental
professional to |
| 6 | | determine the environmental condition of the property,
|
| 7 | | including but not limited to performance of soil borings and |
| 8 | | groundwater
monitoring. The court shall grant a remediation |
| 9 | | order under paragraph (ii)
above where testing of the property |
| 10 | | indicates that it fails to meet the
applicable remediation |
| 11 | | objectives. The hearing upon the application to the
circuit |
| 12 | | court shall be expedited by the court and shall be given |
| 13 | | precedence
over
all other suits.
|
| 14 | | The cost of the inspection, testing, or remediation |
| 15 | | incurred by the
municipality or by a lien holder of record, |
| 16 | | including court costs, attorney's
fees, and other costs related |
| 17 | | to the enforcement of this Section,
is a lien on the real |
| 18 | | estate; except that in any instances where a
municipality
|
| 19 | | incurs costs
of inspection and testing but finds no hazardous |
| 20 | | substances or petroleum
products on the property
that present |
| 21 | | an actual or imminent
threat to public health and safety, such |
| 22 | | costs are not recoverable from the
owners nor are such costs a |
| 23 | | lien on the real estate. The lien is superior to
all prior |
| 24 | | existing liens and encumbrances, except taxes and any lien |
| 25 | | obtained
under subsection (a) or (e), if, within 180 days after |
| 26 | | the completion of the
inspection, testing, or remediation, the |
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| 1 | | municipality or the lien holder of
record who
incurred the cost |
| 2 | | and expense shall file a notice of lien for the cost and
|
| 3 | | expense incurred in the office of the recorder in the county in |
| 4 | | which the real
estate is located or in the office of the |
| 5 | | registrar of titles of the county if
the real estate affected |
| 6 | | is registered under the Registered Titles (Torrens)
Act.
|
| 7 | | The notice must consist of a sworn statement setting out |
| 8 | | (i) a description of
the real estate sufficient for its |
| 9 | | identification, (ii) the amount of money
representing the cost |
| 10 | | and expense incurred, and (iii) the date or dates when
the
cost |
| 11 | | and expense was incurred by the municipality or the lien holder |
| 12 | | of record.
Upon payment of the lien amount by the owner of or |
| 13 | | persons interested in the
property after the notice of lien has |
| 14 | | been filed, a release of lien shall be
issued by the |
| 15 | | municipality, the person in whose name the lien has been filed,
|
| 16 | | or the assignee of the lien, and the release may be filed of |
| 17 | | record as in the
case of filing notice of lien.
|
| 18 | | The lien may be enforced under subsection (c) or by |
| 19 | | foreclosure proceedings
as
in the case of mortgage foreclosures |
| 20 | | under Article XV of the Code of Civil
Procedure or mechanics' |
| 21 | | lien foreclosures; provided that where the lien is
enforced by |
| 22 | | foreclosure under subsection (c) or under either statute, the
|
| 23 | | municipality may
not proceed against the other assets of the |
| 24 | | owner or owners of the real estate
for any costs that otherwise |
| 25 | | would be recoverable under this Section but that
remain |
| 26 | | unsatisfied after foreclosure except where such additional |
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| 1 | | recovery is
authorized by separate environmental laws. An |
| 2 | | action to foreclose this lien
may be commenced at any time |
| 3 | | after the date of filing of the notice of lien.
The costs of |
| 4 | | foreclosure incurred by the municipality, including court |
| 5 | | costs,
reasonable attorney's fees, advances to preserve the |
| 6 | | property, and other costs
related to the enforcement of this |
| 7 | | subsection, plus statutory interest, are a
lien on the real |
| 8 | | estate.
|
| 9 | | All liens arising under this subsection (f) shall be |
| 10 | | assignable. The
assignee of the lien shall have the same power |
| 11 | | to enforce the lien as the
assigning party, except that the |
| 12 | | lien may not be enforced under subsection
(c).
|
| 13 | | (g) In any case where a municipality has obtained a lien |
| 14 | | under subsection
(a), the municipality may also bring an action |
| 15 | | for a money judgment against the
owner or owners of the real |
| 16 | | estate in the amount of the lien in the same manner
as provided |
| 17 | | for bringing causes of action in Article II of the Code of |
| 18 | | Civil
Procedure and, upon obtaining a judgment, file a judgment |
| 19 | | lien against all of
the real estate of the owner or owners and |
| 20 | | enforce that lien as provided for in
Article XII of the Code of |
| 21 | | Civil Procedure.
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| 22 | | (Source: P.A. 95-331, eff. 8-21-07; 95-931, eff. 1-1-09.)
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