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| [ Introduced ] | [ Enrolled ] | [ Senate Amendment 001 ] |
91_HB1978eng HB1978 Engrossed LRB9104006PTpk 1 AN ACT regarding property, amending named Acts. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 4 Section 5. The Property Tax Code is amended by changing 5 Sections 21-105 and 21-310 as follows: 6 (35 ILCS 200/21-105) 7 Sec. 21-105. Liability of owner; rights of tax 8 purchaser. Nothing in Sections 21-95 and 21-100 shall relieve 9 any owner liable for delinquent property taxes under this 10 Code from the payment of any delinquent taxes or liens which 11 have become null and void under those Sections. 12 Sections 21-95 and 21-100 shall not adversely affect the 13 rights or interests of the holder of any bona fide 14 certificate of purchase of the property for delinquent taxes. 15 However, upon acquisition of property by a governmental unit 16 as set forth in Section 21-95, the rights and interests of 17 the holder of any bona fide certificate of purchase of the 18 property for delinquent taxes shall be limited to a sale in 19 error and a refund as provided under Section 21-310. 20 (Source: P.A. 86-949; 86-1158; 88-455.) 21 (35 ILCS 200/21-310) 22 Sec. 21-310. Sales in error. 23 (a) When, upon application of the county collector, tax 24 purchaser, or a municipality which owns or has owned the 25 property ordered sold, it appears to the satisfaction of the 26 court which ordered the property sold that any of the 27 following subsections are applicable, the court shall declare 28 the sale to be a sale in error: 29 (1) the property was not subject to taxation, 30 (2) the taxes or special assessments had been paid HB1978 Engrossed -2- LRB9104006PTpk 1 prior to the sale of the property, 2 (3) there is a double assessment, 3 (4) the description is void for uncertainty, 4 (5) the assessor, chief county assessment officer, 5 board of review, or board of appeals has made an error 6 (other than an error of judgment as to the value of any 7 property),or8 (6) prior to the tax sale a voluntary or 9 involuntary petition has been filed by or against the 10 legal or beneficial owner of the property requesting 11 relief under the provisions of 11 U.S.C. Chapter 7, 11, 12 12, or 13, or.13 (7) a municipality has acquired the property (i) 14 through the foreclosure of a lien authorized under 15 Section 11-31-1 of the Illinois Municipal Code or through 16 a judicial deed issued under that Section or (ii) through 17 foreclosure of a receivership certificate lien. 18 (b) When, upon application of the tax purchaser or his 19 or her assignee only, it appears to the satisfaction of the 20 court which ordered the property sold that any of the 21 following subsections are applicable, the court shall declare 22 a sale in error: 23 (1) A voluntary or involuntary petition under the 24 provisions of 11 U.S.C. Chapter 7, 11, 12, or 13 has been 25 filed subsequent to the tax sale and prior to the 26 issuance of the tax deed. 27 (2) The improvements upon the property sold have 28 been substantially destroyed or rendered uninhabitable or 29 otherwise unfit for occupancy subsequent to the tax sale 30 and prior to the issuance of the tax deed. 31 (3) There is an interest held by the United States 32 in the property sold which could not be extinguished by 33 the tax deed. 34 (4) The real property contains a hazardous HB1978 Engrossed -3- LRB9104006PTpk 1 substance, hazardous waste, or underground storage tank 2 that would require cleanup or other removal under any 3 federal, State, or local law, ordinance, or regulation, 4 only if the tax purchaser purchased the property without 5 actual knowledge of the hazardous substance, hazardous 6 waste, or underground storage tank. This paragraph (4) 7 applies only to tax purchases occurring after January 1, 8 1990 and if the tax purchaser or his or her assignee has 9 made application for a sale in error at any time before 10 the issuance of a tax deed. 11 If a sale is declared to be a sale in error, the county 12 clerk shall make entry in the tax judgment, sale, redemption 13 and forfeiture record, that the property was erroneously 14 sold, and the county collector shall, on demand of the owner 15 of the certificate of purchase, refund the amount paid, pay 16 any interest and costs as may be ordered under Sections 17 21-315 through 21-335, and cancel the certificate so far as 18 it relates to the property. The county collector shall deduct 19 from the accounts of the appropriate taxing bodies their pro 20 rata amounts paid. 21 (Source: P.A. 88-455; 88-676, eff. 12-14-94; revised 22 10-31-98.) 23 Section 10. The Illinois Municipal Code is amended by 24 changing Section 11-31-1 as follows: 25 (65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1) 26 Sec. 11-31-1. Demolition, repair, enclosure, or 27 remediation. 28 (a) The corporate authorities of each municipality may 29 demolish, repair, or enclose or cause the demolition, repair, 30 or enclosure of dangerous and unsafe buildings or uncompleted 31 and abandoned buildings within the territory of the 32 municipality and may remove or cause the removal of garbage, HB1978 Engrossed -4- LRB9104006PTpk 1 debris, and other hazardous, noxious, or unhealthy substances 2 or materials from those buildings. In any county having 3 adopted by referendum or otherwise a county health department 4 as provided by Division 5-25 of the Counties Code or its 5 predecessor, the county board of that county may exercise 6 those powers with regard to dangerous and unsafe buildings or 7 uncompleted and abandoned buildings within the territory of 8 any city, village, or incorporated town having less than 9 50,000 population. 10 The corporate authorities shall apply to the circuit 11 court of the county in which the building is located (i) for 12 an order authorizing action to be taken with respect to a 13 building if the owner or owners of the building, including 14 the lien holders of record, after at least 15 days' written 15 notice by mail so to do, have failed to put the building in a 16 safe condition or to demolish it or (ii) for an order 17 requiring the owner or owners of record to demolish, repair, 18 or enclose the building or to remove garbage, debris, and 19 other hazardous, noxious, or unhealthy substances or 20 materials from the building. It is not a defense to the 21 cause of action that the building is boarded up or otherwise 22 enclosed, although the court may order the defendant to have 23 the building boarded up or otherwise enclosed. Where, upon 24 diligent search, the identity or whereabouts of the owner or 25 owners of the building, including the lien holders of record, 26 is not ascertainable, notice mailed to the person or persons 27 in whose name the real estate was last assessed is sufficient 28 notice under this Section. 29 The hearing upon the application to the circuit court 30 shall be expedited by the court and shall be given precedence 31 over all other suits. Any person entitled to bring an action 32 under subsection (b) shall have the right to intervene in an 33 action brought under this Section. 34 The cost of the demolition, repair, enclosure, or removal HB1978 Engrossed -5- LRB9104006PTpk 1 incurred by the municipality, by an intervenor, or by a lien 2 holder of record, including court costs, attorney's fees, and 3 other costs related to the enforcement of this Section, is 4 recoverable from the owner or owners of the real estate or 5 the previous owner or both if the property was transferred 6 during the 15 day notice period and is a lien on the real 7 estate; the lien is superior to all prior existing liens and 8 encumbrances, except taxes, if, within 180 days after the 9 repair, demolition, enclosure, or removal, the municipality, 10 the lien holder of record, or the intervenor who incurred the 11 cost and expense shall file a notice of lien for the cost and 12 expense incurred in the office of the recorder in the county 13 in 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 (1) a description of the real estate sufficient for its 18 identification, (2) the amount of money representing the cost 19 and expense incurred, and (3) the date or dates when the cost 20 and expense was incurred by the municipality, the lien holder 21 of record, or the intervenor. Upon payment of the cost and 22 expense by the owner of or persons interested in the property 23 after the notice of lien has been filed, the lien shall be 24 released by the municipality, the person in whose name the 25 lien has been filed, or the assignee of the lien, and the 26 release may be filed of record as in the case of filing 27 notice of lien. Unless the lien is enforced under subsection 28 (c), the lien may be enforced by foreclosure proceedings as 29 in the case of mortgage foreclosures under Article XV of the 30 Code of Civil Procedure or mechanics' lien foreclosures. An 31 action to foreclose this lien may be commenced at any time 32 after the date of filing of the notice of lien. The costs of 33 foreclosure incurred by the municipality, including court 34 costs, reasonable attorney's fees, advances to preserve the HB1978 Engrossed -6- LRB9104006PTpk 1 property, and other costs related to the enforcement of this 2 subsection, plus statutory interest, are a lien on the real 3 estate and are recoverable by the municipality from the owner 4 or owners of the real estate. 5 All liens arising under this subsection (a) shall be 6 assignable. The assignee of the lien shall have the same 7 power to enforce the lien as the assigning party, except that 8 the lien may not be enforced under subsection (c). 9 If the appropriate official of any municipality 10 determines that any dangerous and unsafe building or 11 uncompleted and abandoned building within its territory 12 fulfills the requirements for an action by the municipality 13 under the Abandoned Housing Rehabilitation Act, the 14 municipality may petition under that Act in a proceeding 15 brought under this subsection. 16 (b) Any owner or tenant of real property within 1200 17 feet in any direction of any dangerous or unsafe building 18 located within the territory of a municipality with a 19 population of 500,000 or more may file with the appropriate 20 municipal authority a request that the municipality apply to 21 the circuit court of the county in which the building is 22 located for an order permitting the demolition, removal of 23 garbage, debris, and other noxious or unhealthy substances 24 and materials from, or repair or enclosure of the building in 25 the manner prescribed in subsection (a) of this Section. If 26 the municipality fails to institute an action in circuit 27 court within 90 days after the filing of the request, the 28 owner or tenant of real property within 1200 feet in any 29 direction of the building may institute an action in circuit 30 court seeking an order compelling the owner or owners of 31 record to demolish, remove garbage, debris, and other noxious 32 or unhealthy substances and materials from, repair or enclose 33 or to cause to be demolished, have garbage, debris, and other 34 noxious or unhealthy substances and materials removed from, HB1978 Engrossed -7- LRB9104006PTpk 1 repaired, or enclosed the building in question. A private 2 owner or tenant who institutes an action under the preceding 3 sentence shall not be required to pay any fee to the clerk of 4 the circuit court. The cost of repair, removal, demolition, 5 or enclosure shall be borne by the owner or owners of record 6 of the building. In the event the owner or owners of record 7 fail to demolish, remove garbage, debris, and other noxious 8 or unhealthy substances and materials from, repair, or 9 enclose the building within 90 days of the date the court 10 entered its order, the owner or tenant who instituted the 11 action may request that the court join the municipality as a 12 party to the action. The court may order the municipality to 13 demolish, remove materials from, repair, or enclose the 14 building, or cause that action to be taken upon the request 15 of any owner or tenant who instituted the action or upon the 16 municipality's request. The municipality may file, and the 17 court may approve, a plan for rehabilitating the building in 18 question. A court order authorizing the municipality to 19 demolish, remove materials from, repair, or enclose a 20 building, or cause that action to be taken, shall not 21 preclude the court from adjudging the owner or owners of 22 record of the building in contempt of court due to the 23 failure to comply with the order to demolish, remove garbage, 24 debris, and other noxious or unhealthy substances and 25 materials from, repair, or enclose the building. 26 If a municipality or a person or persons other than the 27 owner or owners of record pay the cost of demolition, removal 28 of garbage, debris, and other noxious or unhealthy substances 29 and materials, repair, or enclosure pursuant to a court 30 order, the cost, including court costs, attorney's fees, and 31 other costs related to the enforcement of this subsection, is 32 recoverable from the owner or owners of the real estate and 33 is a lien on the real estate; the lien is superior to all 34 prior existing liens and encumbrances, except taxes, if, HB1978 Engrossed -8- LRB9104006PTpk 1 within 180 days after the repair, removal, demolition, or 2 enclosure, the municipality or the person or persons who paid 3 the costs of demolition, removal, repair, or enclosure shall 4 file a notice of lien of the cost and expense incurred in the 5 office of the recorder in the county in which the real estate 6 is located or in the office of the registrar of the county if 7 the real estate affected is registered under the Registered 8 Titles (Torrens) Act. The notice shall be in a form as is 9 provided in subsection (a). An owner or tenant who 10 institutes an action in circuit court seeking an order to 11 compel the owner or owners of record to demolish, remove 12 materials from, repair, or enclose any dangerous or unsafe 13 building, or to cause that action to be taken under this 14 subsection may recover court costs and reasonable attorney's 15 fees for instituting the action from the owner or owners of 16 record of the building. Upon payment of the costs and 17 expenses by the owner of or a person interested in the 18 property after the notice of lien has been filed, the lien 19 shall be released by the municipality or the person in whose 20 name the lien has been filed or his or her assignee, and the 21 release may be filed of record as in the case of filing a 22 notice of lien. Unless the lien is enforced under subsection 23 (c), the lien may be enforced by foreclosure proceedings as 24 in the case of mortgage foreclosures under Article XV of the 25 Code of Civil Procedure or mechanics' lien foreclosures. An 26 action to foreclose this lien may be commenced at any time 27 after the date of filing of the notice of lien. The costs of 28 foreclosure incurred by the municipality, including court 29 costs, reasonable attorneys' fees, advances to preserve the 30 property, and other costs related to the enforcement of this 31 subsection, plus statutory interest, are a lien on the real 32 estate and are recoverable by the municipality from the owner 33 or owners of the real estate. 34 All liens arising under the terms of this subsection (b) HB1978 Engrossed -9- LRB9104006PTpk 1 shall be assignable. The assignee of the lien shall have the 2 same power to enforce the lien as the assigning party, except 3 that the lien may not be enforced under subsection (c). 4 (c) In any case where a municipality has obtained a lien 5 under subsection (a), (b), or (f), the municipality may 6 enforce the lien under this subsection (c) in the same 7 proceeding in which the lien is authorized. 8 A municipality desiring to enforce a lien under this 9 subsection (c) shall petition the court to retain 10 jurisdiction for foreclosure proceedings under this 11 subsection. Notice of the petition shall be served, by 12 certified or registered mail, on all persons who were served 13 notice under subsection (a), (b), or (f). The court shall 14 conduct a hearing on the petition not less than 15 days after 15 the notice is served. If the court determines that the 16 requirements of this subsection (c) have been satisfied, it 17 shall grant the petition and retain jurisdiction over the 18 matter until the foreclosure proceeding is completed. The 19 costs of foreclosure incurred by the municipality, including 20 court costs, reasonable attorneys' fees, advances to preserve 21 the property, and other costs related to the enforcement of 22 this subsection, plus statutory interest, are a lien on the 23 real estate and are recoverable by the municipality from the 24 owner or owners of the real estate. If the court denies the 25 petition, the municipality may enforce the lien in a separate 26 action as provided in subsection (a), (b), or (f). 27 All persons designated in Section 15-1501 of the Code of 28 Civil Procedure as necessary parties in a mortgage 29 foreclosure action shall be joined as parties before issuance 30 of an order of foreclosure. Persons designated in Section 31 15-1501 of the Code of Civil Procedure as permissible parties 32 may also be joined as parties in the action. 33 The provisions of Article XV of the Code of Civil 34 Procedure applicable to mortgage foreclosures shall apply to HB1978 Engrossed -10- LRB9104006PTpk 1 the foreclosure of a lien under this subsection (c), except 2 to the extent that those provisions are inconsistent with 3 this subsection. For purposes of foreclosures of liens 4 under this subsection, however, the redemption period 5 described in subsection (b) of Section 15-1603 of the Code of 6 Civil Procedure shall end 60 days after the date of entry of 7 the order of foreclosure. 8 (d) In addition to any other remedy provided by law, the 9 corporate authorities of any municipality may petition the 10 circuit court to have property declared abandoned under this 11 subsection (d) if: 12 (1) the property has been tax delinquent for 2 or 13 more years or bills for water service for the property 14 have been outstanding for 2 or more years; 15 (2) the property is unoccupied by persons legally 16 in possession; and 17 (3) the property contains a dangerous or unsafe 18 building. 19 All persons having an interest of record in the property, 20 including tax purchasers and beneficial owners of any 21 Illinois land trust having title to the property, shall be 22 named as defendants in the petition and shall be served with 23 process. In addition, service shall be had under Section 24 2-206 of the Code of Civil Procedure as in other cases 25 affecting property. 26 The municipality, however, may proceed under this 27 subsection in a proceeding brought under subsection (a) or 28 (b). Notice of the petition shall be served by certified or 29 registered mail on all persons who were served notice under 30 subsection (a) or (b). 31 If the municipality proves that the conditions described 32 in this subsection exist and the owner of record of the 33 property does not enter an appearance in the action, or, if 34 title to the property is held by an Illinois land trust, if HB1978 Engrossed -11- LRB9104006PTpk 1 neither the owner of record nor the owner of the beneficial 2 interest of the trust enters an appearance, the court shall 3 declare the property abandoned. 4 If that determination is made, notice shall be sent by 5 certified or registered mail to all persons having an 6 interest of record in the property, including tax purchasers 7 and beneficial owners of any Illinois land trust having title 8 to the property, stating that title to the property will be 9 transferred to the municipality unless, within 30 days of the 10 notice, the owner of record enters an appearance in the 11 action, or unless any other person having an interest in the 12 property files with the court a request to demolish the 13 dangerous or unsafe building or to put the building in safe 14 condition. 15 If the owner of record enters an appearance in the action 16 within the 30 day period, the court shall vacate its order 17 declaring the property abandoned. In that case, the 18 municipality may amend its complaint in order to initiate 19 proceedings under subsection (a). 20 If a request to demolish or repair the building is filed 21 within the 30 day period, the court shall grant permission to 22 the requesting party to demolish the building within 30 days 23 or to restore the building to safe condition within 60 days 24 after the request is granted. An extension of that period 25 for up to 60 additional days may be given for good cause. If 26 more than one person with an interest in the property files a 27 timely request, preference shall be given to the person with 28 the lien or other interest of the highest priority. 29 If the requesting party proves to the court that the 30 building has been demolished or put in a safe condition 31 within the period of time granted by the court, the court 32 shall issue a quitclaim judicial deed for the property to the 33 requesting party, conveying only the interest of the owner of 34 record, upon proof of payment to the municipality of all HB1978 Engrossed -12- LRB9104006PTpk 1 costs incurred by the municipality in connection with the 2 action, including but not limited to court costs, attorney's 3 fees, administrative costs, the costs, if any, associated 4 with building enclosure or removal, and receiver's 5 certificates. The interest in the property so conveyed shall 6 be subject to all liens and encumbrances on the property. In 7 addition, if the interest is conveyed to a person holding a 8 certificate of purchase for the property under the Property 9 Tax Code, the conveyance shall be subject to the rights of 10 redemption of all persons entitled to redeem under that Act, 11 including the original owner of record. 12 If no person with an interest in the property files a 13 timely request or if the requesting party fails to demolish 14 the building or put the building in safe condition within the 15 time specified by the court, the municipality may petition 16 the court to issue a judicial deed for the property to the 17 municipality. A conveyance by judicial deed shall operate to 18 extinguish all existing ownership interests in, liens on, and 19 other interest in the property, including tax liens, and 20 shall extinguish the rights and interests of any and all 21 holders of a bona fide certificate of purchase of the 22 property for delinquent taxes. Any such bona fide 23 certificate of purchase holder shall be entitled to a sale in 24 error as prescribed under Section 21-310 of the Property Tax 25 Code. 26 (e) Each municipality may use the provisions of this 27 subsection to expedite the removal of certain buildings that 28 are a continuing hazard to the community in which they are 29 located. 30 If a residential or commercial building is 3 stories or 31 less in height as defined by the municipality's building 32 code, and the corporate official designated to be in charge 33 of enforcing the municipality's building code determines that 34 the building is open and vacant and an immediate and HB1978 Engrossed -13- LRB9104006PTpk 1 continuing hazard to the community in which the building is 2 located, then the official shall be authorized to post a 3 notice not less than 2 feet by 2 feet in size on the front of 4 the building. The notice shall be dated as of the date of 5 the posting and shall state that unless the building is 6 demolished, repaired, or enclosed, and unless any garbage, 7 debris, and other hazardous, noxious, or unhealthy substances 8 or materials are removed so that an immediate and continuing 9 hazard to the community no longer exists, then the building 10 may be demolished, repaired, or enclosed, or any garbage, 11 debris, and other hazardous, noxious, or unhealthy substances 12 or materials may be removed, by the municipality. 13 Not later than 30 days following the posting of the 14 notice, the municipality shall do both of the following: 15 (1) Cause to be sent, by certified mail, return 16 receipt requested, a notice to all owners of record of 17 the property, the beneficial owners of any Illinois land 18 trust having title to the property, and all lienholders 19 of record in the property, stating the intent of the 20 municipality to demolish, repair, or enclose the building 21 or remove any garbage, debris, or other hazardous, 22 noxious, or unhealthy substances or materials if that 23 action is not taken by the owner or owners. 24 (2) Cause to be published, in a newspaper published 25 or circulated in the municipality where the building is 26 located, a notice setting forth (i) the permanent tax 27 index number and the address of the building, (ii) a 28 statement that the property is open and vacant and 29 constitutes an immediate and continuing hazard to the 30 community, and (iii) a statement that the municipality 31 intends to demolish, repair, or enclose the building or 32 remove any garbage, debris, or other hazardous, noxious, 33 or unhealthy substances or materials if the owner or 34 owners or lienholders of record fail to do so. This HB1978 Engrossed -14- LRB9104006PTpk 1 notice shall be published for 3 consecutive days. 2 AnyAperson or persons with a current legal or equitable 3 interest in the property objecting to the proposed actions of 4 the corporate authorities may file his or her objection in an 5 appropriate form in a court of competent jurisdiction. 6 If the building is not demolished, repaired, or enclosed, 7 or the garbage, debris, or other hazardous, noxious, or 8 unhealthy substances or materials are not removed, within 30 9 days of mailing the notice to the owners of record, the 10 beneficial owners of any Illinois land trust having title to 11 the property, and all lienholders of record in the property, 12 or within 30 days of the last day of publication of the 13 notice, whichever is later, the corporate authorities shall 14 have the power to demolish, repair, or enclose the building 15 or to remove any garbage, debris, or other hazardous, 16 noxious, or unhealthy substances or materials. 17 The municipality may proceed to demolish, repair, or 18 enclose a building or remove any garbage, debris, or other 19 hazardous, noxious, or unhealthy substances or materials 20 under this subsection within a 120-day period following the 21 date of the mailing of the notice if the appropriate official 22 determines that the demolition, repair, enclosure, or removal 23 of any garbage, debris, or other hazardous, noxious, or 24 unhealthy substances or materials is necessary to remedy the 25 immediate and continuing hazard. If, however, before the 26 municipality proceeds with any of the actions authorized by 27 this subsection, any person with a legal or equitable 28 interest in the property has sought a hearing under this 29 subsection before a court and has served a copy of the 30 complaint on the chief executive officer of the municipality, 31 then the municipality shall not proceed with the demolition, 32 repair, enclosure, or removal of garbage, debris, or other 33 substances until the court determines that that action is 34 necessary to remedy the hazard and issues an order HB1978 Engrossed -15- LRB9104006PTpk 1 authorizing the municipality to do so. 2 Following the demolition, repair, or enclosure of a 3 building, or the removal of garbage, debris, or other 4 hazardous, noxious, or unhealthy substances or materials 5 under this subsection, the municipality may file a notice of 6 lien against the real estate for the cost of the demolition, 7 repair, enclosure, or removal within 180 days after the 8 repair, demolition, enclosure, or removal occurred, for the 9 cost and expense incurred, in the office of the recorder in 10 the county in which the real estate is located or in the 11 office of the registrar of titles of the county if the real 12 estate affected is registered under the Registered Titles 13 (Torrens) Act. The notice of lien shall consist of a sworn 14 statement setting forth (i) a description of the real estate, 15 such as the address or other description of the property, 16 sufficient for its identification; (ii) the expenses incurred 17 by the municipality in undertaking the remedial actions 18 authorized under this subsection; (iii) the date or dates the 19 expenses were incurred by the municipality; (iv) a statement 20 by the corporate official responsible for enforcing the 21 building code that the building was open and vacant and 22 constituted an immediate and continuing hazard to the 23 community; (v) a statement by the corporate official that the 24 required sign was posted on the building, that notice was 25 sent by certified mail to the owners of record, and that 26 notice was published in accordance with this subsection; and 27 (vi) a statement as to when and where the notice was 28 published. The lien authorized by this subsection may 29 thereafter be released or enforced by the municipality as 30 provided in subsection (a). 31 (f) The corporate authorities of each municipality may 32 remove or cause the removal of, or otherwise environmentally 33 remediate hazardous substances on, in, or under any abandoned 34 and unsafe property within the territory of a municipality. HB1978 Engrossed -16- LRB9104006PTpk 1 In addition, where preliminary evidence indicates the 2 presence or likely presence of a hazardous substance or a 3 release or a substantial threat of a release of a hazardous 4 substance on, in, or under the property, the corporate 5 authorities of the municipality may inspect the property and 6 test for the presence or release of hazardous substances. In 7 any county having adopted by referendum or otherwise a county 8 health department as provided by Division 5-25 of the 9 Counties Code or its predecessor, the county board of that 10 county may exercise the above-described powers with regard to 11 property within the territory of any city, village, or 12 incorporated town having less than 50,000 population. 13 For purposes of this subsection (f): 14 (1) "property" or "real estate" means all real 15 property, whether or not improved by a structure; 16 (2) "abandoned" means; 17 (A) the property has been tax delinquent for 2 18 or more years; 19 (B) the property is unoccupied by persons 20 legally in possession; and 21 (3) "unsafe" means property that presents an actual 22 or imminent threat to public health and safety caused by 23 the release of hazardous substances; and 24 (4) "hazardous substances" means the same as in 25 Section 3.14 of the Environmental Protection Act. 26 The corporate authorities shall apply to the circuit 27 court of the county in which the property is located (i) for 28 an order allowing the municipality to enter the property and 29 inspect and test substances on, in, or under the property; or 30 (ii) for an order authorizing the corporate authorities to 31 take action with respect to remediation of the property if 32 conditions on the property, based on the inspection and 33 testing authorized in paragraph (i), indicate the presence of 34 hazardous substances. Remediation shall be deemed complete HB1978 Engrossed -17- LRB9104006PTpk 1 for purposes of paragraph (ii) above when the property 2 satisfies Tier I, II, or III remediation objectives for the 3 property's most recent usage, as established by the 4 Environmental Protection Act, and the rules and regulations 5 promulgated thereunder. Where, upon diligent search, the 6 identity or whereabouts of the owner or owners of the 7 property, including the lien holders of record, is not 8 ascertainable, notice mailed to the person or persons in 9 whose name the real estate was last assessed is sufficient 10 notice under this Section. 11 The court shall grant an order authorizing testing under 12 paragraph (i) above upon a showing of preliminary evidence 13 indicating the presence or likely presence of a hazardous 14 substance or a release of or a substantial threat of a 15 release of a hazardous substance on, in, or under abandoned 16 property. The preliminary evidence may include, but is not 17 limited to, evidence of prior use, visual site inspection, or 18 records of prior environmental investigations. The testing 19 authorized by paragraph (i) above shall include any type of 20 investigation which is necessary for an environmental 21 professional to determine the environmental condition of the 22 property, including but not limited to performance of soil 23 borings and groundwater monitoring. The court shall grant a 24 remediation order under paragraph (ii) above where testing of 25 the property indicates that it fails to meet the applicable 26 remediation objectives. The hearing upon the application to 27 the circuit court shall be expedited by the court and shall 28 be given precedence over all other suits. 29 The cost of the inspection, testing, or remediation 30 incurred by the municipality or by a lien holder of record, 31 including court costs, attorney's fees, and other costs 32 related to the enforcement of this Section, is a lien on the 33 real estate; except that in any instances where a 34 municipality incurs costs of inspection and testing but finds HB1978 Engrossed -18- LRB9104006PTpk 1 no hazardous substances on the property that present an 2 actual or imminent threat to public health and safety, such 3 costs are not recoverable from the owners nor are such costs 4 a lien on the real estate. The lien is superior to all prior 5 existing liens and encumbrances, except taxes and any lien 6 obtained under subsection (a) or (e), if, within 180 days 7 after the completion of the inspection, testing, or 8 remediation, the municipality or the lien holder of record 9 who incurred the cost and expense shall file a notice of lien 10 for the cost and expense incurred in the office of the 11 recorder in the county in which the real estate is located or 12 in the office of the registrar of titles of the county if the 13 real estate affected is registered under the Registered 14 Titles (Torrens) Act. 15 The notice must consist of a sworn statement setting out 16 (i) a description of the real estate sufficient for its 17 identification, (ii) the amount of money representing the 18 cost and expense incurred, and (iii) the date or dates when 19 the cost and expense was incurred by the municipality or the 20 lien holder of record. Upon payment of the lien amount by 21 the owner of or persons interested in the property after the 22 notice of lien has been filed, a release of lien shall be 23 issued by the municipality, the person in whose name the lien 24 has been filed, or the assignee of the lien, and the release 25 may be filed of record as in the case of filing notice of 26 lien. 27 The lien may be enforced under subsection (c) or by 28 foreclosure proceedings as in the case of mortgage 29 foreclosures under Article XV of the Code of Civil Procedure 30 or mechanics' lien foreclosures; provided that where the lien 31 is enforced by foreclosure under subsection (c) or under 32 either statute, the municipality may not proceed against the 33 other assets of the owner or owners of the real estate for 34 any costs that otherwise would be recoverable under this HB1978 Engrossed -19- LRB9104006PTpk 1 Section but that remain unsatisfied after foreclosure except 2 where such additional recovery is authorized by separate 3 environmental laws. An action to foreclose this lien may be 4 commenced at any time after the date of filing of the notice 5 of lien. The costs of foreclosure incurred by the 6 municipality, including court costs, reasonable attorney's 7 fees, advances to preserve the property, and other costs 8 related to the enforcement of this subsection, plus statutory 9 interest, are a lien on the real estate. 10 All liens arising under this subsection (f) shall be 11 assignable. The assignee of the lien shall have the same 12 power to enforce the lien as the assigning party, except that 13 the lien may not be enforced under subsection (c). 14 (Source: P.A. 89-235, eff. 8-4-95; 89-303, eff. 1-1-96; 15 90-393, eff. 1-1-98; 90-597, eff. 6-25-98; revised 9-16-98.)