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Rep. Al Riley
Filed: 5/21/2008
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LRB095 05539 RLJ 51183 a |
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| AMENDMENT TO SENATE BILL 2677
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| AMENDMENT NO. ______. Amend Senate Bill 2677 on page 1, |
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| line 5, by replacing "Section 7-1-13" with "Sections 7-1-13 and |
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| 11-31-1"; and |
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| on page 3, immediately below line 26, by inserting the |
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| following:
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| "(65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)
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| Sec. 11-31-1. Demolition, repair, enclosure, or |
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| remediation.
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| (a) The corporate authorities of each municipality may |
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| demolish, repair,
or enclose or cause the demolition, repair, |
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| or enclosure of
dangerous and unsafe buildings or uncompleted |
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| and abandoned buildings
within the territory of the |
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| municipality and may remove or cause the
removal of garbage, |
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| debris, and other hazardous, noxious, or unhealthy
substances |
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| or materials from those buildings. In any county
having adopted |
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| by referendum or otherwise a county health department as
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| provided by Division 5-25 of the Counties Code or its |
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| predecessor, the
county board of that county may exercise those |
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| powers with regard to
dangerous and unsafe buildings or |
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| uncompleted and abandoned buildings
within the territory of any |
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| city, village, or incorporated town having less
than 50,000 |
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| population.
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| The corporate authorities shall apply to the circuit court |
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| of the county
in which the building is located (i) for an order |
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| authorizing action to
be taken with respect to a building if |
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| the owner or owners of the building,
including the lien holders |
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| of record, after at least 15 days' written
notice by mail so to |
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| do, have failed to put the building in a safe
condition or to |
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| demolish it or (ii) for an order requiring the owner or
owners |
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| of record to demolish, repair, or enclose the building or to |
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| remove
garbage, debris, and other hazardous, noxious, or |
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| unhealthy substances or
materials from the building. It is not |
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| a defense to the cause of action
that the building is boarded |
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| up or otherwise enclosed, although the court
may order the |
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| defendant to have the building boarded up or otherwise
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| enclosed. Where, upon diligent search, the identity or |
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| whereabouts of the
owner or owners of the building, including |
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| the lien holders of record,
is not ascertainable, notice mailed |
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| to the person or persons in whose name
the real estate was last |
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| assessed is sufficient notice under this Section.
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| The hearing upon the application to the circuit court shall |
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| be expedited
by the court and shall be given precedence over |
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| all other suits.
Any person entitled to bring an action under |
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| subsection (b) shall have
the right to intervene in an action |
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| brought under this Section.
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| The cost of the demolition, repair, enclosure, or removal |
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| incurred by
the municipality, by an intervenor, or by a lien |
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| holder of record,
including court costs, attorney's fees, and |
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| other costs related to the
enforcement of this Section, is |
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| recoverable from the owner or owners of
the real estate or the |
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| previous owner or both if the property was transferred
during |
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| the 15 day notice period and is a lien on the real estate; the |
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| lien is
superior to all prior existing liens and encumbrances, |
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| except taxes, if, within
180 days after the repair, demolition, |
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| enclosure, or removal, the municipality,
the lien holder of |
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| record, or the intervenor who incurred the cost and expense
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| shall file a notice of lien for the cost and expense incurred |
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| in the office of
the recorder in the county in which the real |
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| estate is located or in the office
of the registrar of titles |
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| of the county if the real estate affected is
registered under |
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| the Registered Titles (Torrens) Act.
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| The notice must consist of a sworn statement setting out |
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| (1) a
description of the real estate sufficient for its |
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| identification, (2)
the amount of money representing the cost |
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| and expense incurred, and (3) the
date or dates when the cost |
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| and expense was incurred by the municipality,
the lien holder |
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| of record, or the intervenor. Upon payment of the cost and
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| expense by the owner of or persons interested in the property |
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| after the
notice of lien has been filed, the lien shall be |
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| released by the
municipality, the person in whose name the lien |
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| has been filed, or the
assignee of the lien, and the release |
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| may be filed of record as in the case
of filing notice of lien. |
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| Unless the lien is enforced under subsection (c),
the lien may |
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| be enforced by foreclosure proceedings as in the case of
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| mortgage foreclosures under Article XV of the Code of Civil |
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| Procedure or
mechanics' lien foreclosures. An action to |
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| foreclose this lien
may be commenced at any time after the date |
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| of filing of the notice of
lien. The costs of foreclosure |
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| incurred by the municipality, including
court costs, |
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| reasonable attorney's fees, advances to preserve the property,
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| and other costs related to the enforcement of this subsection, |
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| plus
statutory interest, are a lien on the real estate and are |
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| recoverable by
the municipality from the owner or owners of the |
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| real estate.
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| All liens arising under this subsection (a) shall be |
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| assignable.
The assignee of the lien shall have the same power |
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| to enforce the lien
as the assigning party, except that the |
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| lien may not be
enforced under subsection (c).
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| If the appropriate official of any municipality determines |
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| that any
dangerous and unsafe building or uncompleted and |
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| abandoned building within
its territory fulfills the |
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| requirements for an action by the municipality
under the |
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| Abandoned Housing Rehabilitation Act, the municipality may
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| petition under that Act in a proceeding brought under this |
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| subsection.
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| (b) Any owner or tenant of real property within 1200 feet |
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| in any
direction of any dangerous or unsafe building located |
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| within the territory
of a municipality with a population of |
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| 500,000 or more may file with the
appropriate municipal |
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| authority a request that the municipality apply to
the circuit |
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| court of the county in which the building is located for an
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| order permitting the demolition, removal of garbage, debris, |
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| and other
noxious or unhealthy substances and materials from, |
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| or repair or enclosure of
the building in the manner prescribed |
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| in subsection (a) of this Section.
If the municipality fails to |
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| institute an action in circuit court within 90
days after the |
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| filing of the request, the owner or tenant of real property
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| within 1200 feet in any direction of the building may institute |
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| an action
in circuit court seeking an order compelling the |
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| owner or owners of record
to demolish, remove garbage, debris, |
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| and other noxious or unhealthy
substances and materials from, |
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| repair or enclose or to cause to be
demolished, have garbage, |
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| debris, and other noxious or unhealthy substances
and materials |
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| removed from, repaired, or enclosed the building in question.
A |
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| private owner or tenant who institutes an action under the |
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| preceding sentence
shall not be required to pay any fee to the |
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| clerk of the circuit court.
The cost of repair, removal, |
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| demolition, or enclosure shall be borne by
the owner or owners |
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| of record of the building. In the event the owner or
owners of |
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| record fail to demolish, remove garbage, debris, and other |
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| noxious
or unhealthy substances and materials from, repair, or |
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| enclose the building
within 90 days of the date the court |
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| entered its order, the owner or tenant
who instituted the |
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| action may request that the court join the municipality
as a |
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| party to the action. The court may order the municipality to |
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| demolish,
remove materials from, repair, or enclose the |
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| building, or cause that action to
be taken upon the request of |
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| any owner or tenant who instituted the action or
upon the |
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| municipality's request. The municipality may file, and the |
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| court may
approve, a plan for rehabilitating the building in |
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| question. A court order
authorizing the municipality to |
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| demolish, remove materials from, repair, or
enclose a building, |
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| or cause that action to be taken, shall not preclude the
court |
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| from adjudging the owner or owners of record of the building in |
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| contempt
of court due to the failure to comply with the order |
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| to demolish, remove
garbage, debris, and other noxious or |
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| unhealthy substances and materials from,
repair, or enclose the |
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| building.
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| If a municipality or a person or persons other than the |
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| owner or
owners of record pay the cost of demolition, removal |
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| of garbage, debris, and
other noxious or unhealthy substances |
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| and materials, repair, or enclosure
pursuant to a court order, |
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| the cost, including court costs, attorney's fees,
and other |
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| costs related to the enforcement of this subsection, is
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| recoverable from the owner or owners of the real estate and is |
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| a lien
on the real estate; the lien is superior to all prior |
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| existing liens and
encumbrances, except taxes, if, within 180 |
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| days after the
repair, removal, demolition, or enclosure, the |
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| municipality or the person or
persons who paid the costs of |
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| demolition, removal, repair, or enclosure
shall file a notice |
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| of lien of the cost and expense incurred in the office
of the |
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| recorder in the county in which the real estate is located or |
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| in the
office of the registrar of the county if the real estate |
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| affected is
registered under the Registered Titles (Torrens) |
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| Act. The notice shall be
in a form as is provided in subsection |
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| (a). An owner or tenant who
institutes an action in circuit |
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| court seeking an order to compel the owner
or owners of record |
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| to demolish, remove materials from, repair, or enclose any
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| dangerous or unsafe building, or to cause that action to be |
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| taken under this
subsection may recover court costs and |
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| reasonable attorney's fees for
instituting the action from the |
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| owner or owners of record of the building.
Upon payment of the |
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| costs and expenses by the owner of or a person
interested in |
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| the property after the notice of lien has been filed, the
lien |
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| shall be released by the municipality or the person in whose |
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| name the
lien has been filed or his or her assignee, and the |
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| release may be filed of
record as in the case of filing a |
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| notice of lien. Unless the lien is
enforced under subsection |
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| (c), the lien may be enforced by foreclosure
proceedings as in |
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| the case of mortgage foreclosures under Article XV of the
Code |
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| of Civil Procedure or mechanics' lien foreclosures. An action |
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| to
foreclose this lien may be commenced at any time after the |
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| date of filing
of the notice of lien. The costs of foreclosure |
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| incurred by the
municipality, including court costs, |
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| reasonable attorneys' fees, advances
to preserve the property, |
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| and other costs related to the enforcement of
this subsection, |
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| plus statutory interest, are a lien on the real estate
and are |
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| recoverable by the municipality from the owner or owners of the
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| real estate.
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| All liens arising under the terms of this subsection (b) |
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| shall be
assignable. The assignee of the lien shall have the |
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| same power to
enforce the lien as the assigning party, except |
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| that the lien may not be
enforced under subsection (c).
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| (c) In any case where a municipality has obtained a lien |
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| under
subsection (a), (b), or (f), the municipality may enforce |
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| the
lien
under
this subsection (c) in the same proceeding in |
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| which the lien is authorized.
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| A municipality desiring to enforce a lien under this |
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| subsection (c) shall
petition the court to retain jurisdiction |
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| for foreclosure proceedings under
this subsection. Notice of |
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| the petition shall be served, by certified or
registered mail, |
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| on all persons who were served notice under subsection
(a), |
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| (b), or (f). The court shall conduct a hearing on the petition |
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| not
less than 15
days after the notice is served. If the court |
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| determines that the
requirements of this subsection (c) have |
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| been satisfied, it shall grant the
petition and retain |
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| jurisdiction over the matter until the foreclosure
proceeding |
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| is completed. The costs of foreclosure incurred by the
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| municipality, including court costs, reasonable attorneys' |
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| fees, advances
to preserve the property, and other costs |
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| related to the enforcement of
this subsection, plus statutory |
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| interest, are a lien on the real estate and
are recoverable by |
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| the municipality from the owner or owners of the real
estate. |
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| If the court denies the petition, the municipality may enforce |
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| the
lien in a separate action as provided in subsection (a), |
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| (b), or
(f).
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| All persons designated in Section 15-1501 of the Code of |
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| Civil Procedure
as necessary parties in a mortgage foreclosure |
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| action shall be joined as
parties before issuance of an order |
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| of foreclosure. Persons designated
in Section 15-1501 of the |
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| Code of Civil Procedure as permissible parties
may also be |
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| joined as parties in the action.
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| The provisions of Article XV of the Code of Civil Procedure |
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| applicable to
mortgage foreclosures shall apply to the |
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| foreclosure of a lien under
this subsection (c), except to the |
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| extent that those provisions are
inconsistent with this |
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| subsection. For purposes of foreclosures
of liens under this |
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| subsection, however, the redemption period described in
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| subsection (b) of Section 15-1603 of the Code of Civil |
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| Procedure shall end
60 days after the date of entry of the |
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| order of foreclosure.
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| (d) In addition to any other remedy provided by law, the |
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| corporate
authorities of any municipality may petition the |
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| circuit court to have
property declared abandoned under this |
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| subsection (d) if:
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| (1) the property has been tax delinquent for 2 or more |
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| years or bills
for water service for the property have been |
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| outstanding for 2 or more years;
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| (2) the property is unoccupied by persons legally in |
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| possession; and
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| (3) the property contains a dangerous or unsafe |
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| building for reasons specified in the petition .
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| All persons having an interest of record in the property, |
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| including tax
purchasers and beneficial owners of any Illinois |
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| land trust having title to
the property, shall be named as |
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| defendants in the petition and shall be
served with process. In |
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| addition, service shall be had under Section
2-206 of the Code |
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| of Civil Procedure as in other cases affecting property.
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| The municipality, however, may proceed under this |
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| subsection in a
proceeding brought under subsection (a) or (b). |
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| Notice of the petition
shall be served in person or by |
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| certified or registered mail on all persons who were
served |
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| notice under subsection (a) or (b).
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| If the municipality proves that the conditions described in |
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| this
subsection exist and (i) the owner of record of the |
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| property does not enter
an appearance in the action, or, if |
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| title to the property is held by an
Illinois land trust, if |
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| neither the owner of record nor the owner of the
beneficial |
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| interest of the trust enters an appearance, or (ii) if the |
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| owner of record or the beneficiary of a land trust, if title to |
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| the property is held by an Illinois land trust, enters an |
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| appearance and specifically waives his or her rights under this |
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| subsection (d), the court
shall declare the property abandoned. |
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| Notwithstanding any waiver, the municipality may move to |
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| dismiss its petition at any time. In addition, any waiver in a |
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| proceeding under this subsection (d) does not serve as a waiver |
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| for any other proceeding under law or equity.
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| If that determination is made, notice shall be sent in |
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| person or by certified or
registered mail to all persons having |
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| an interest of record in the
property, including tax purchasers |
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| and beneficial owners of any Illinois
land trust having title |
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| to the property, stating that title to the
property will be |
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| transferred to the municipality unless, within 30 days of
the |
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| notice, the owner of record or enters an appearance in the |
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| action, or
unless any other person having an interest in the |
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| property files with the
court a request to demolish the |
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| dangerous or unsafe building or to put the
building in safe |
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| condition , or unless the owner of record enters an appearance |
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| and proves that the owner does not intend to abandon the |
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| property .
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| If the owner of record enters an appearance in the action |
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| within the 30
day period, but does not at that time file with |
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| the court a request to demolish the dangerous or unsafe |
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| building or to put the building in safe condition, or |
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| specifically waive his or her rights under this subsection (d), |
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| the court shall vacate its order declaring the property
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| abandoned if it determines that the owner of record does not |
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| intend to abandon the property . In that case, the municipality |
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| may amend its complaint in order
to initiate proceedings under |
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| subsection (a) , or it may request that the court order the |
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| owner to demolish the building or repair the dangerous or |
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| unsafe conditions of the building alleged in the petition or |
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| seek the appointment of a receiver or other equitable relief to |
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| correct the conditions at the property. The powers and rights |
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| of a receiver appointed under this subsection (d) shall include |
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| all of the powers and rights of a receiver appointed under |
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| Section 11-31-2 of this Code .
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| If a request to demolish or repair the building is filed |
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| within the 30
day period, the court shall grant permission to |
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| the requesting party to
demolish the building within 30 days or |
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| to restore the building to safe
condition within 60 days after |
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| the request is granted. An extension of
that period for up to |
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| 60 additional days may be given for good cause. If
more than |
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| one person with an interest in the property files a timely
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| request, preference shall be given to the owner of record if |
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| the owner filed a request or, if the owner did not, the person |
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| with the lien or other
interest of the highest priority.
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| If the requesting party (other than the owner of record) |
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| proves to the court that the building has been
demolished or |
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| put in a safe condition in accordance with the local safety |
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| codes within the period of time granted by
the court, the court |
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| shall issue a quitclaim judicial deed for the
property to the |
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| requesting party, conveying only the interest of the owner
of |
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| record, upon proof of payment to the municipality of all costs |
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| incurred
by the municipality in connection with the action, |
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| including but not
limited to court costs, attorney's fees, |
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| administrative costs, the
costs, if any, associated with |
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| building enclosure or removal, and receiver's
certificates. |
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| The interest in the property so conveyed shall be subject to
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| all liens and encumbrances on the property. In addition, if the |
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| interest is
conveyed to a person holding a certificate of |
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| purchase for the property
under the Property Tax Code, the |
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| conveyance shall
be subject to the rights of redemption of all |
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| persons entitled to redeem under
that Act, including the |
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| original owner of record. If the requesting party is the owner |
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| of record and proves to the court that the building has been |
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| demolished or put in a safe condition in accordance with the |
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| local safety codes within the period of time granted by the |
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| court, the court shall dismiss the proceeding under this |
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| subsection (d).
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| If the owner of record has not entered an appearance and |
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| proven that the owner did not intend to abandon the property, |
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| and if If no person with an interest in the property files a |
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| timely request or
if the requesting party fails to demolish the |
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| building or put the building
in safe condition within the time |
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| specified by the court, the municipality
may petition the court |
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| to issue a judicial deed for the property to the
municipality. |
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| A conveyance by judicial deed shall operate to extinguish
all |
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| existing ownership interests in, liens on, and other interest |
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| in the
property, including tax liens, and shall extinguish the |
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| rights and
interests of any and all holders of a bona fide |
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| certificate of purchase of the
property for delinquent taxes. |
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| Any such bona fide certificate of purchase
holder shall be
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| entitled to a sale in error as prescribed under Section 21-310 |
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| of the Property
Tax Code.
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| (e) Each municipality may use the provisions of this |
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| subsection to expedite
the removal
of certain buildings that |
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| are a continuing hazard to the community in which
they are |
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| located.
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| If a residential or commercial building is 3 stories or |
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| less in height as
defined by the
municipality's building code, |
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| and the corporate official designated to be
in charge of |
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| enforcing the municipality's building code determines that the
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| building is open and vacant and an immediate and continuing |
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| hazard to the
community in which the building is located, then |
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| the official shall be
authorized to post a notice not less than |
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| 2 feet by 2 feet in size on the
front of the building. The |
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| notice shall be dated as of the date of the
posting and shall |
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| state that unless the building is demolished, repaired,
or |
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| enclosed, and unless any garbage, debris, and other hazardous, |
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| noxious,
or unhealthy substances or materials are removed so |
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| that an immediate and
continuing hazard to the community no |
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| longer exists, then the building may
be demolished, repaired, |
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| or enclosed, or any garbage, debris, and other
hazardous, |
2 |
| noxious, or unhealthy substances or materials may be removed, |
3 |
| by
the municipality.
|
4 |
| Not later than 30 days following the posting of the notice, |
5 |
| the
municipality shall do all of the following:
|
6 |
| (1) Cause to be sent, by certified mail, return receipt |
7 |
| requested,
a Notice to Remediate to all owners of
record of |
8 |
| the property, the beneficial owners of any Illinois land |
9 |
| trust
having title to the property, and all lienholders of |
10 |
| record in the property,
stating the intent of the |
11 |
| municipality to demolish,
repair, or enclose the building |
12 |
| or remove any garbage, debris, or other
hazardous, noxious, |
13 |
| or unhealthy substances or materials if that action is
not |
14 |
| taken by the owner or owners.
|
15 |
| (2) Cause to be published, in a newspaper published or |
16 |
| circulated in the
municipality where the building is |
17 |
| located, a notice setting forth (i)
the permanent tax index |
18 |
| number and the address of the building, (ii) a
statement |
19 |
| that the property is open and vacant and constitutes an |
20 |
| immediate and
continuing hazard to the community, and (iii) |
21 |
| a statement that the municipality
intends to demolish, |
22 |
| repair, or enclose the building or remove any garbage,
|
23 |
| debris, or other hazardous, noxious, or unhealthy |
24 |
| substances or materials if
the owner or owners or |
25 |
| lienholders of record fail to do so. This notice shall
be |
26 |
| published for 3 consecutive days.
|
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
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| (3) Cause to be recorded the Notice to Remediate mailed |
2 |
| under paragraph
(1) in
the office of the recorder in the |
3 |
| county in which the real estate is located or
in the
office |
4 |
| of the registrar of titles of the county if the real estate |
5 |
| is
registered under the
Registered Title (Torrens) Act.
|
6 |
| Any person or persons with a current legal or equitable |
7 |
| interest in the
property objecting to the proposed actions of |
8 |
| the corporate authorities may
file his or her objection in an |
9 |
| appropriate form in a court of competent
jurisdiction.
|
10 |
| If the building is not demolished, repaired, or enclosed, |
11 |
| or the garbage,
debris, or other hazardous, noxious, or |
12 |
| unhealthy substances or materials are
not removed, within 30 |
13 |
| days of mailing the notice to the owners of record,
the |
14 |
| beneficial owners of any Illinois land trust having title to |
15 |
| the
property, and all lienholders of record in the property, or
|
16 |
| within 30 days of the last day of publication of the notice, |
17 |
| whichever is
later, the corporate authorities shall have the |
18 |
| power to demolish, repair, or
enclose the building or to remove |
19 |
| any garbage, debris, or other hazardous,
noxious, or unhealthy |
20 |
| substances or materials.
|
21 |
| The municipality may proceed to demolish, repair, or |
22 |
| enclose a building
or remove any garbage, debris, or other |
23 |
| hazardous, noxious, or unhealthy
substances or materials under |
24 |
| this subsection within a 120-day period
following the date of |
25 |
| the mailing of the notice if the appropriate official
|
26 |
| determines that the demolition, repair, enclosure, or removal |
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| of any garbage,
debris, or other hazardous, noxious, or |
2 |
| unhealthy substances or materials is
necessary to remedy the |
3 |
| immediate and continuing hazard. If, however, before
the |
4 |
| municipality proceeds with any of the actions authorized by |
5 |
| this
subsection, any person with a legal or equitable interest |
6 |
| in the property has
sought a hearing under this subsection |
7 |
| before a
court and has served a copy of the complaint on the |
8 |
| chief executive officer of
the municipality, then the |
9 |
| municipality shall not proceed with the demolition,
repair, |
10 |
| enclosure, or removal of garbage, debris, or other substances |
11 |
| until the
court determines that that action is necessary to |
12 |
| remedy the hazard and issues
an order authorizing the |
13 |
| municipality to do so.
If the court dismisses the action for |
14 |
| want of prosecution, the municipality
must send the objector a |
15 |
| copy of the dismissal
order and a letter stating that the |
16 |
| demolition, repair, enclosure, or
removal of garbage, debris, |
17 |
| or other substances will proceed unless, within 30
days after |
18 |
| the copy of the order and the letter are mailed, the
objector
|
19 |
| moves to vacate the dismissal and serves a
copy of the
motion |
20 |
| on the chief executive officer of the municipality. |
21 |
| Notwithstanding
any other law to the contrary, if the objector |
22 |
| does not file a motion and give
the required notice, if the |
23 |
| motion is denied by the court, or if the action is
again |
24 |
| dismissed for want of prosecution, then the dismissal is with |
25 |
| prejudice
and the demolition, repair, enclosure, or removal may |
26 |
| proceed forthwith.
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| Following the demolition, repair, or enclosure of a |
2 |
| building, or the
removal of garbage, debris, or other |
3 |
| hazardous, noxious, or unhealthy
substances or materials under |
4 |
| this subsection, the municipality may file a
notice of lien |
5 |
| against the real estate for the cost of the demolition,
repair, |
6 |
| enclosure, or removal within 180 days after the repair, |
7 |
| demolition,
enclosure, or removal occurred, for the cost and |
8 |
| expense incurred, in the
office of the recorder in the county |
9 |
| in which the real estate is located or
in the office of the |
10 |
| registrar of titles of the county if the real estate
affected |
11 |
| is registered under the Registered Titles (Torrens) Act; this
|
12 |
| lien has priority over the interests of those parties named in |
13 |
| the
Notice to
Remediate mailed under paragraph (1), but not |
14 |
| over the interests of third party
purchasers
or encumbrancers |
15 |
| for value who obtained their interests in the property before
|
16 |
| obtaining
actual or constructive notice of the lien.
The
notice |
17 |
| of lien shall consist of a sworn statement setting forth (i) a
|
18 |
| description of the real estate, such as the address or other |
19 |
| description of
the property, sufficient for its |
20 |
| identification; (ii) the expenses incurred
by the municipality |
21 |
| in undertaking the remedial actions authorized under
this |
22 |
| subsection; (iii) the date or dates the expenses were incurred |
23 |
| by
the municipality; (iv) a statement by the corporate official
|
24 |
| responsible for enforcing the building code that the building |
25 |
| was open and
vacant and constituted an immediate and continuing |
26 |
| hazard
to the community; (v) a statement by the corporate |
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| official that the
required sign was posted on the building, |
2 |
| that notice was sent by certified
mail to the owners of record, |
3 |
| and that notice was published in accordance
with this |
4 |
| subsection; and (vi) a statement as to when and where the |
5 |
| notice
was published. The lien authorized by this subsection |
6 |
| may thereafter be
released or enforced by the municipality as |
7 |
| provided in subsection (a).
|
8 |
| (f) The corporate authorities of each municipality may |
9 |
| remove or cause the
removal of, or otherwise environmentally |
10 |
| remediate hazardous substances and
petroleum products on, in,
|
11 |
| or under any abandoned and unsafe property within the territory |
12 |
| of a
municipality. In addition, where preliminary evidence |
13 |
| indicates the presence
or likely presence of a hazardous |
14 |
| substance or a petroleum product or a release
or a substantial
|
15 |
| threat of a release of a hazardous substance or a petroleum |
16 |
| product on, in, or
under the property, the
corporate |
17 |
| authorities of the municipality may inspect the property and |
18 |
| test for
the presence or release of hazardous substances and |
19 |
| petroleum products. In any
county having adopted
by referendum |
20 |
| or otherwise a county health department as provided by Division
|
21 |
| 5-25 of the Counties Code or its predecessor, the county board |
22 |
| of that county
may exercise the above-described powers with |
23 |
| regard to property within the
territory of any city, village, |
24 |
| or incorporated town having less than 50,000
population.
|
25 |
| For purposes of this subsection (f):
|
26 |
| (1) "property" or "real estate" means all real |
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| property, whether or
not improved by a structure;
|
2 |
| (2) "abandoned" means;
|
3 |
| (A) the property has been tax delinquent for 2 or |
4 |
| more years;
|
5 |
| (B) the property is unoccupied by persons legally |
6 |
| in possession; and
|
7 |
| (3) "unsafe" means property that presents an actual or |
8 |
| imminent
threat to public health and safety caused by
the |
9 |
| release of hazardous substances; and
|
10 |
| (4) "hazardous substances" means the same as in Section |
11 |
| 3.215 of the
Environmental Protection Act.
|
12 |
| The corporate authorities shall apply to the circuit court |
13 |
| of the county in
which the property is located (i) for an order |
14 |
| allowing the municipality to
enter the property and inspect and |
15 |
| test substances on, in, or under
the property; or (ii) for an |
16 |
| order authorizing the
corporate authorities to take action with |
17 |
| respect to remediation of the
property if conditions on the |
18 |
| property, based on the inspection and testing
authorized in |
19 |
| paragraph (i), indicate the presence of hazardous substances or
|
20 |
| petroleum products.
Remediation shall be deemed
complete for |
21 |
| purposes of
paragraph (ii) above when the property satisfies |
22 |
| Tier
I,
II, or
III
remediation objectives for the property's |
23 |
| most recent usage, as established by
the Environmental |
24 |
| Protection Act, and the rules and regulations promulgated
|
25 |
| thereunder. Where, upon diligent search, the identity or |
26 |
| whereabouts of the
owner or owners of the property, including |
|
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09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| the lien holders of record, is not
ascertainable, notice mailed |
2 |
| to the person or persons in whose name the real
estate was last |
3 |
| assessed is sufficient notice under this Section.
|
4 |
| The court shall grant an order authorizing testing under |
5 |
| paragraph (i) above
upon a
showing of preliminary evidence |
6 |
| indicating the presence or likely presence of a
hazardous |
7 |
| substance or a petroleum product or a release of
or a |
8 |
| substantial threat of a release of a hazardous substance or a |
9 |
| petroleum
product on, in, or under
abandoned property. The |
10 |
| preliminary evidence may include, but is not limited
to, |
11 |
| evidence of prior use, visual site inspection, or records of |
12 |
| prior
environmental investigations. The testing authorized by |
13 |
| paragraph (i) above
shall include any type of investigation |
14 |
| which is necessary for an environmental
professional to |
15 |
| determine the environmental condition of the property,
|
16 |
| including but not limited to performance of soil borings and |
17 |
| groundwater
monitoring. The court shall grant a remediation |
18 |
| order under paragraph (ii)
above where testing of the property |
19 |
| indicates that it fails to meet the
applicable remediation |
20 |
| objectives. The hearing upon the application to the
circuit |
21 |
| court shall be expedited by the court and shall be given |
22 |
| precedence
over
all other suits.
|
23 |
| The cost of the inspection, testing, or remediation |
24 |
| incurred by the
municipality or by a lien holder of record, |
25 |
| including court costs, attorney's
fees, and other costs related |
26 |
| to the enforcement of this Section,
is a lien on the real |
|
|
|
09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
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|
1 |
| estate; except that in any instances where a
municipality
|
2 |
| incurs costs
of inspection and testing but finds no hazardous |
3 |
| substances or petroleum
products on the property
that present |
4 |
| an actual or imminent
threat to public health and safety, such |
5 |
| costs are not recoverable from the
owners nor are such costs a |
6 |
| lien on the real estate. The lien is superior to
all prior |
7 |
| existing liens and encumbrances, except taxes and any lien |
8 |
| obtained
under subsection (a) or (e), if, within 180 days after |
9 |
| the completion of the
inspection, testing, or remediation, the |
10 |
| municipality or the lien holder of
record who
incurred the cost |
11 |
| and expense shall file a notice of lien for the cost and
|
12 |
| expense incurred in the office of the recorder in the county in |
13 |
| which the real
estate is located or in the office of the |
14 |
| registrar of titles of the county if
the real estate affected |
15 |
| is registered under the Registered Titles (Torrens)
Act.
|
16 |
| The notice must consist of a sworn statement setting out |
17 |
| (i) a description of
the real estate sufficient for its |
18 |
| identification, (ii) the amount of money
representing the cost |
19 |
| and expense incurred, and (iii) the date or dates when
the
cost |
20 |
| and expense was incurred by the municipality or the lien holder |
21 |
| of record.
Upon payment of the lien amount by the owner of or |
22 |
| persons interested in the
property after the notice of lien has |
23 |
| been filed, a release of lien shall be
issued by the |
24 |
| municipality, the person in whose name the lien has been filed,
|
25 |
| or the assignee of the lien, and the release may be filed of |
26 |
| record as in the
case of filing notice of lien.
|
|
|
|
09500SB2677ham001 |
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LRB095 05539 RLJ 51183 a |
|
|
1 |
| The lien may be enforced under subsection (c) or by |
2 |
| foreclosure proceedings
as
in the case of mortgage foreclosures |
3 |
| under Article XV of the Code of Civil
Procedure or mechanics' |
4 |
| lien foreclosures; provided that where the lien is
enforced by |
5 |
| foreclosure under subsection (c) or under either statute, the
|
6 |
| municipality may
not proceed against the other assets of the |
7 |
| owner or owners of the real estate
for any costs that otherwise |
8 |
| would be recoverable under this Section but that
remain |
9 |
| unsatisfied after foreclosure except where such additional |
10 |
| recovery is
authorized by separate environmental laws. An |
11 |
| action to foreclose this lien
may be commenced at any time |
12 |
| after the date of filing of the notice of lien.
The costs of |
13 |
| foreclosure incurred by the municipality, including court |
14 |
| costs,
reasonable attorney's fees, advances to preserve the |
15 |
| property, and other costs
related to the enforcement of this |
16 |
| subsection, plus statutory interest, are a
lien on the real |
17 |
| estate.
|
18 |
| All liens arising under this subsection (f) shall be |
19 |
| assignable. The
assignee of the lien shall have the same power |
20 |
| to enforce the lien as the
assigning party, except that the |
21 |
| lien may not be enforced under subsection
(c).
|
22 |
| (g) In any case where a municipality has obtained a lien |
23 |
| under subsection
(a), the municipality may also bring an action |
24 |
| for a money judgment against the
owner or owners of the real |
25 |
| estate in the amount of the lien in the same manner
as provided |
26 |
| for bringing causes of action in Article II of the Code of |