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91_SB1170
LRB9104007PTpk
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 Section 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
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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), or
8 (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
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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,
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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
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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
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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,
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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,
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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)
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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
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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
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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
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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
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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
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1 notice shall be published for 3 consecutive days.
2 Any A person 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
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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.
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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
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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
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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
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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.)