What is Abandonment?
The Illinois legislature has provided a statutory definition of the term abandonment, but it is a definition that applies only in limited circumstances. Thus, the terms abandonment or abandoned do not have a singular or universal definition under Illinois law.
Black’s Law Dictionary defines an abandoned property or item as "an item of property that a person has relinquished all right, title, claim, or interest in". The gist of this definition is that the property is without an owner, regardless of whether or not its last owner is aware of its whereabouts. Similarly, a property which has been abandoned by its owner is without any owner.
However, Illinois – for the purposes of real property taxes – has a much broader definition than that contained in Black’s. States are permitted to define abandonment however they see fit and Illinois allows counties to use their discretion in determining whether a parcel should be classified as abandoned or not. Illinois Compiled Statues, Chapter 35 Property Tax Code, Section 5-120 (c), defines abandoned property as follows:
(c) "abandoned" means property containing a structure that has remained unoccupied by human beings for the most recent 12 consecutive months and has been subject to a property tax lien for the 12 most recent consecutive months; however, if the body of a structure of a property consists of multiple units, the requirements of this subdivision (c) apply to each individual unit .
This definition shows that abandonment at least in regards to Illinois property taxes, is much broader and less specific than simply lost by its last owner. It is not limited to property that is not used – it is property that is not occupied. As such, a parcel of real property can be empty and still be occupied for purposes of real property taxes if the owner is temporarily occupying it through regular visits or otherwise. For example, a person with a second home and regularly bounces in and out may be occupying their home for a few days every month, though no one may be living there regularly.
In Illinois, when a property is classified as abandoned, this can often lead to collections procedures initiated by the county against the property. In Cook County, for example, if the county wishes to foreclose a tax lien, the law requires that the county seek to determine if there is a right of redemption. To find out if there is a right of redemption, the county will typically contact the last known owner of record. This is to insure that those with any interest in the property are aware of the proceedings and do not wish to redeem the property and can do so within the applicable time period. If they choose not to redeem during the given time period, the county has the option of applying to the Circuit Court for a foreclosure under 35 ILCS 200/21-325.
Legal Tests for Abandonment in Illinois
Illinois courts have established several criteria to consider in determining whether property is legally abandoned. Shelbyville Dollar, Inc. v. Jones, 337 Ill. App. 3d 990, 995 (4th Dist. 2003). In the case of real estate, "there must be not only a relinquishment of possession but an intent to abandon the property." Id. It is not enough to demonstrate abandonment by showing that the property has been left unused for a period of time or that the owner had no intention of returning to the property. Id. Instead, "abandonment will not be found unless there is affirmative and sufficient proof of an intent to abandon and a voluntary act by which the abandoning party carries that intent into effect." Id.
The Illinois Commercial Code Section 2-A-103(1)-(4) defines "lease" as "a transfer of the right to possession and use of goods for a term in return for consideration." 810 ILCS 5/2-A-103(1). Section 2-A-103(7) defines "goods" as "all things that are movable at the time of identification to the lease contract or that are fixtures, including the unborn young of animals and growing crops." 810 ILCS 5/2-A-103(7). In the Illinois UCC, property has been held to be abandoned when the owner has intentionally relinquished all claims to it and walked away with no intention of reclaiming it. People v. 2000 Dodge Neon, VIN 1B3ES27C6YD115747, 365 Ill. App. 3d 270, 275 (2d Dist. 2006). Further, in Chicago-Kent College of Law v. McMahon, 233 Ill. App. 3d 720 (1st Dist. 1992), the court held that a party must intend to relinquish all right, title, claim, and possession and thereafter must engage in some overt act to divest him or herself of possession of the property for the property to be abandoned.
Claiming Abandonment
In Illinois, the process for claiming ownership of abandoned property can be complex and often requires strict adherence to specific legal steps. The first step generally involves an investigation of the relevant facts and records to establish the basis for claiming the property as abandoned. Once this groundwork has been laid, a legal petition for abandonment must usually be filed with a court, along with supporting evidence and documentation. This petition should clearly outline the reasons why the claimant believes the property in question has been abandoned, as well as any relevant supporting facts, such as the absence of the original owner at the property and an extended period of unoccupied time.
After the filing of the petition, the court will typically schedule a hearing on the issue of abandonment. The person or entity claiming the property as abandoned must appear at this hearing and make their case based upon the evidence provided in the petition. If the court is satisfied that the property has been abandoned, it will usually issue an order declaring the property as such and naming the claimant as the new owner. At that point, the claimant can then move forward with the transfer of ownership just as they would with any normal property transaction.
If it is not clear at the start of the process whether the property is, in fact, considered legally abandoned, an experienced attorney can help you understand the nature of the process ahead and provide the information needed for your petition to the court.
Rights and Duties of Property Owners
The rights and responsibilities of an owner of real estate in Illinois that is subject to a property abandonment proceeding is essentially the same as that of any other owner of real estate in Illinois. The Illinois Supreme Court has determined that the Illinois Code of Civil Procedure,357, is intended as a general code and governs all civil actions in Illinois unless provided otherwise by statute.358 This includes abusive litigation sanctions provided for in the Illinois Mortgage Foreclosure Act and Abandoned Residential Property Act.359 Therefore, the provisions of the Illinois Code of Civil Procedure,360 such as the abstention doctrine,361 are applicable to abandoned residential property proceedings.
With the exception of the City of Chicago,362 in order for a party to prevail in a motion to order a foreclosure sale of abandoned residential property363 the plaintiff must establish that the property was abandoned364 prior to the filing of the complaint385 or the court can not render the property abandoned. If the property is determined as abandoned, the plaintiff is required to establish by evidence adduced on sworn affidavit366 that notice to persons having liens may be dispensed with.367 The Court may, therefore, mandate abandonment determinations to be a prerequisite in order to invoke the power of the court to dispense with or shorten notice to persons having interests in the property.
Depending upon the jurisdiction within Illinois368 the holding periods under any property abatement statute369 to abandon a property could vary,370 but what remains constant is that the notice of the abandonment proceedings370 must be provided via a method equating to service of process371 on the individual claiming interest in the property373 and provided pursuant to the 735 ILCS 5/2-205374 for Illinois’ Code in Civil Procedure.375 However, there is one notable exception376 in the State of Illinois known as the Real Property Tax Default Act377 which permits a judge to use another method of service by publishing notice378 when the parties simply cannot be found377,470 or discovered and no one is interested or claiming an interest in the property in all of this state’s 102 counties471. Until the property is transferred,381 the owner382 remains responsible for the maintenance of the property393 which is provided for in the disposal of abandoned property381 and safe housing regulations.383 This essentially prevents a party from escaping liability387 for the preservation of the property387 during any period that it is abandoned388 and holding the municipality388 or some other member of the chain of title383 potentially liable for the abandoned property.386 If a party381 intends on opposing the abandonment order380 the party385 merely needs to file379 an answer/an objection379 and should also provide evidence379 regarding the development and notice380 of the foreclosure proceedings during the proceeding384 in order to prevent a default judgement378 from being rendered against them.382 The judge383 has no alternative but to grant382 the order to dispose of682 the abandoned property381385 in a manner just and proper to the court.390
Impact of Abandonment on Neighborhoods
The impact of property abandonment on local communities in Illinois is extensive and often rather harsh. In the short term, owners and neighboring properties may incur an economic loss. The area where a property remains abandoned is often hardest hit economically because of the loss of revenue that authorities lose when taxes are not paid on the property, which may have been bringing in tax revenue previously. However, over time, it is the community at large that suffers.
Abandoned properties in Illinois tend to be poorly maintained and allow for a number of serious problems, both to neighboring properties and the community as a whole. Some of the most common issues faced by communities plagued with abandoned properties include the following:
The costs associated with these problems can be substantial for local governments, and residents are often paid the price in poor living conditions and low property value .
Communities in Illinois have recently begun to take measures to reduce the instances of property abandonment. As communities across the state deal with the severe impacts of the foreclosure crisis, they are looking at ways to punish banks and other institutions that fail to address properties they own that are no longer occupied. In some cases, vacant foreclosure registries have taken effect, requiring owners of both commercial and residential properties to register their vacant properties with local authorities. However, this alone is not enough to eliminate the broader problem that abandoned properties present to communities in Illinois.
Legal Ramifications of Abandonment
Legal Consequences of Abandonment in Illinois
If a property is determined to be abandoned in Illinois, the legal consequences can range in complexity and severity. Once a building or piece of land is marked abandoned, the authorities have several options available for dealing with the location, including demolition, sale, foreclosure, and even criminal prosecution.
In some cases, the municipality will seek to demolish the building and replace it with a park or community garden. As long as notice is properly given under subsection (b) of the Abandoned Residential Property Municipality Relief Act, the costly procedures of abating a nuisance can be justified.
More often than not, though, the local government will seek to sell the property to private buyers. In these types of cases, the law forces the owner to cooperate with the sale. However, section 30 of the Abandoned Residential Property Municipality Relief Act provides special protection for residential properties. Under this section, the municipality retains the option—albeit in extremely limited circumstances—to seek earnings from a foreclosure sale.
The sale may come in the form of a foreclosure against the property or through a separate sale. The municipality has the option to foreclose the property as long as it is vacant and abandoned, and the city has maintained municipal liens against the property for 6 months. In most cases, the municipality will need to wait 30 days after sending a notice of foreclosure, but as part of the law, the municipality must give other lien holders at least 30 days before claiming any proceeds from the sale. The claim must be filed 90 days after the closing of the sale.
Once the property is sold, the city has the option to request a portion of the proceeds from the sale. The municipality will receive half of the proceeds less any amount owed on the property. The remaining proceeds will be divvied up among the other lien holders.
Examples of Abandoned Properties
We’ll look at a few case studies of the ramifications of Illinois property abandonment and abandonment laws. Dave Kershaw owns a property in Washington County. He was contacted by the Village of Washington about a vacant, condemned house across the street from his residence. The local ordinance required that he cut the grass every week. He believed the ordinance was unreasonable and refused to comply. The village quickly filed a lawsuit against him to recover the costs of the numerous mowings. When he failed to respond to the suit, the village obtained a judgment against him in the amount of $3,500. Mr. Kershaw discovered that a proper challenge to the ordinance could have saved him thousands of dollars. Ted Brown owned a property in Collinsville. He abandoned it and moved to Shiloh. He put the property on the market but was unable to find a buyer. In 2014 , the City of Collinsville filed a lawsuit against him seeking a judgement against him in the amount of $14,520. He never responded to the complaint and lost by default. Careful research would have enabled Mr. Brown to present evidence to avoid such a steep penalty. Jim Donovan bought rental property in Waterloo. His three-story apartment building was heavily damaged in a fire. He received notice from the City of Waterloo telling him to demolish the building or repair it within 60 days. He saw the repairs as a bad investment and decided to leave the apartment vacant for more than two decades. The City of Waterloo filed a lawsuit against him for the demolition of the building, which they did at a cost of $35,645. He failed to respond to the lawsuit and had not invested in a proper defense.