SB3034 93RD GENERAL ASSEMBLY

LRB093 20129 MKM 45874 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
SB3034

Introduced 2/6/2004, by Kimberly A. Lightford

SYNOPSIS AS INTRODUCED:

35 ILCS 200/22-35
65 ILCS 5/11-31-1	from Ch. 24, par. 11-31-1

Amends the Illinois Municipal Code. Makes various changes authorizing a municipality to take certain remedial measures and to obtain a court order in relation to the publicly-owned property surrounding dangerous and unsafe or uncompleted or abandoned buildings and the property on which those buildings are located. Includes the beneficial owner of an Illinois land trust that is the record owner of such property among those against whom the municipality may obtain or enforce an action for reimbursement of the costs of remedial measures taken by the municipality. Provides that those costs include statutory interest from the date the costs are incurred or the work is completed, whichever is later. Makes various changes concerning the collection and accrual of interest on liens for the costs and expenses of remedial action by the municipality and the process by which the municipality may obtain a court order authorizing the remedial action and requiring that certain parties reimburse the municipality for the costs and expenses of taking that action. Amends the Property Tax Code. Provides that all liens for the costs and expenses of the remedial action are reimbursable municipal advancements and that such liens that are not paid or waived render a tax deed void in a tax proceeding. Makes other changes.

A BILL FOR

AN ACT concerning municipalities.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Property Tax Code is amended by changing Section 22-35 as follows:

(35 ILCS 200/22-35)

Sec. 22-35. Reimbursement of municipality before issuance of tax deed. Except in any proceeding in which the tax purchaser is a county acting as a trustee for taxing districts as provided in Section 21-90, an order for the issuance of a tax deed under this Code shall not be entered affecting the title to or interest in any property in which a city, village or incorporated town has made advancements of public funds an interest under the police and welfare power by advancements made from public funds, until the purchaser or assignee makes reimbursement to the city, village or incorporated town of the amounts money so advanced or the city, village, or town waives its recorded or unrecorded lien on the property for the amounts money so advanced, or waives reimbursements under this provision. Municipal advancements are all costs, fees, expenses, expenditures, internal transfers, interest, and other charges and applications of public funds incurred by a municipality for activities that are authorized by a State statute or conducted under the police and welfare powers of a municipality under the Illinois Municipal Code. However, In lieu of reimbursement or waiver, the purchaser or his or her assignee may make application for and the court shall order that the tax purchase be set aside as a sale in error. A filing or appearance fee shall not be required of a city, village or incorporated town seeking to enforce its right to reimbursement claim under this Section if the municipality chooses to appear in a tax deed proceeding. Any tax deed recorded without the reimbursement or waiver required under this Section is a void deed in a tax deed proceeding.

(Source: P.A. 93-490, eff. 8-8-03.)

Section 10. The Illinois Municipal Code is amended by changing Section 11-31-1 as follows:

(65 ILCS 5/11-31-1) (from Ch. 24, par. 11-31-1)

Sec. 11-31-1. Demolition, repair, enclosure, or remediation.

(a) The corporate authorities of each municipality may demolish, repair, or enclose or cause the demolition, repair, or enclosure of dangerous and unsafe buildings or uncompleted or and abandoned buildings or enclose as much of the publicly owned property surrounding the buildings as is necessary to protect the public health, safety, and welfare within the territory of the municipality and may remove or cause the removal of garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from those buildings and the property on which they are located, or from as much of the publicly owned property surrounding the buildings as is necessary to protect the public health, safety, and welfare. In any county having adopted by referendum or otherwise a county health department as provided by Division 5-25 of the Counties Code or its predecessor, the county board of that county may exercise those powers with regard to dangerous and unsafe buildings or uncompleted or and abandoned buildings and the property on which they are located, or as much of the publicly owned property surrounding the buildings as is necessary to protect the public health, safety, and welfare within the territory of any city, village, or incorporated town having less than 50,000 population.

The corporate authorities shall apply to the circuit court of the county in which the building is located (i) for an order authorizing action to be taken with respect to a building and the property on which it is located, or as much of the publicly owned property surrounding the building as is necessary to protect the public health, safety, and welfare, if the owner or owners of the building, including the lien holders of record and the beneficial owner of an Illinois land trust that is the record owner, after at least 15 days' written notice by mail or service of summons so to do, have failed to put the building in a safe condition or to demolish it or (ii) for an order requiring the owner or owners of record or the beneficial owner of an Illinois land trust that is the record owner to demolish, repair, or enclose the building or to remove garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from the building and the property on which it is located. It is not a defense to the cause of action that the building is boarded up or otherwise enclosed, although the court may order the defendant to have the building boarded up or otherwise enclosed. Where, upon diligent search, the identity or whereabouts of the owner or owners of the building, including the lien holders of record and the beneficial owner of an Illinois land trust that is the record owner, is not ascertainable, notice mailed to or service of summons upon the person or persons in whose name the real estate was last assessed is sufficient notice under this subsection Section.

The hearing upon the application to the circuit court shall be expedited by the court and shall be given precedence over all other suits. Any person entitled to bring an action under subsection (b) shall have the right to intervene in an action brought under this subsection Section.

The cost of the demolition, repair, enclosure, or removal incurred by the municipality, by an intervenor, or by a lien holder of record, including court costs, attorney's fees, statutory interest from the date the costs are incurred or the work is completed, whichever is later, and other costs related to the enforcement of this subsection Section, is recoverable from the owner or owners and the beneficial owner of an Illinois land trust that is the record owner of the real estate, or from the previous owner and current owner, or both if the property was transferred during the 15 day notice period and is a lien on the real estate. ; The lien is superior to all prior existing liens and encumbrances, except taxes, if, within 180 days after the cost are incurred or the work is completed, whichever is later, repair, demolition, enclosure, or removal, the municipality, the lien holder of record, or the intervenor who incurred the cost and expense shall file a notice of lien for the cost and expense incurred in the office of the recorder in the county in which the real estate is located. All liens arising under this subsection are reimbursable municipal advancements under Section 25-35 of the Property Tax Code or in the office of the registrar of titles of the county if the real estate affected is registered under the Registered Titles (Torrens) Act.

The recorded notice must consist of a sworn statement setting out (1) a description of the real estate sufficient for its identification, (2) the amount of money representing the cost and expense incurred, together with the interest rate payable thereon, and (3) the date or dates when the cost and expense was incurred or the work was completed by the municipality, the lien holder of record, or the intervenor. Upon payment of the lien, including the payment of interest as required under this subsection, cost and expense by the owner of or persons interested in the property after the notice of lien has been filed, the lien shall be released by the municipality, the person in whose name the lien has been filed, or the assignee of the lien, and the release may be filed of record as in the case of filing notice of lien. Unless the lien is enforced under subsection (c), the lien may be enforced by foreclosure proceedings as in the case of mortgage foreclosures under Article XV of the Code of Civil Procedure or mechanics' lien foreclosures. An action to foreclose a lien arising under this subsection this lien may be commenced at any time after the date of filing of the notice of lien. The costs of foreclosure incurred by the municipality, including court costs, reasonable attorney's fees, advances to preserve the property, and other costs related to the enforcement of this subsection, plus statutory interest, from the date the costs were incurred or the work was completed, whichever is later, are a lien on the real estate and are recoverable by the municipality from the owner or owners, the beneficial owner of an Illinois land trust that is the record owner, and subsequent owners of the real estate and from any persons otherwise obligated to satisfy the liens arising under this subsection.

All liens arising under this subsection (a) shall be assignable. After assignment, the lien shall continue to bear statutory interest as set forth in this subsection, but shall cease to be a reimbursable municipal advancement under Section 22-35 of the Property Tax Code. The assignee of the lien shall have the same power to enforce the lien as the assigning party, except that only a municipality the lien may enforce the lien not be enforced under subsection (c).

Statutory interest on the statutory liens arising under this subsection shall be as set forth in Article II of the Code of Civil Procedure concerning judgement liens. Interest payable by the holder of a certificate of purchase of delinquent taxes shall accrue from the later of (i) the date the costs and expenses are incurred or the work is completed, whichever is later, or (ii) the date of the tax sale represented by the certificate of purchase.

If the appropriate official of any municipality determines that any dangerous and unsafe building or uncompleted or and abandoned building within its territory fulfills the requirements for an action by the municipality under the Abandoned Housing Rehabilitation Act, the municipality may petition under that Act in a proceeding brought under this subsection.

(b) Any owner or tenant of real property within 1200 feet in any direction of any dangerous or unsafe building located within the territory of a municipality with a population of 500,000 or more may file with the appropriate municipal authority a request that the municipality apply to the circuit court of the county in which the building is located for an order permitting the demolition, removal of garbage, debris, and other noxious or unhealthy substances and materials from, or repair or enclosure of the building and the property on which it is located in the manner prescribed in subsection (a) of this Section. If the municipality fails to institute an action in circuit court within 90 days after the filing of the request, the owner or tenant of real property within 1200 feet in any direction of the building may institute an action in circuit court seeking an order compelling the owner or owners of record and the beneficial owner of an Illinois land trust that is the record owner to demolish, remove garbage, debris, and other noxious or unhealthy substances and materials from, repair or enclose or to cause to be demolished, have garbage, debris, and other noxious or unhealthy substances and materials removed from, repaired, or enclosed the building in question and the property on which it is located. A private owner or tenant who institutes an action under the preceding sentence shall not be required to pay any fee to the clerk of the circuit court. The cost of repair, removal, demolition, or enclosure shall be borne by the owner or owners of record and the beneficial owners of an Illinois land trust that is the record owner of the real estate building. In the event the owner or owners of record and the beneficial owner of an Illinois land trust that is the record owner fail to perform the court-ordered remedial actions demolish, remove garbage, debris, and other noxious or unhealthy substances and materials from, repair, or enclose the building within 90 days of the date the court entered its order, the owner or tenant who instituted the action may request that the court join the municipality as a party to the action. The court may authorize order the municipality to demolish, remove materials from, repair, or enclose the building and the property on which it is located or as much of the publicly-owned property surrounding the building as is necessary to protect the public health, safety, and welfare, or cause that action to be taken upon the request of any owner or tenant who instituted the action or upon the municipality's request. The municipality may file, and the court may approve, a plan for rehabilitating the building in question. A court order authorizing the municipality to demolish, remove materials from, repair, or enclose a building and the property on which it is located or as much of the publicly-owned property surrounding the building as is necessary to protect the public health, safety and welfare , or cause that action to be taken, shall not preclude the court from adjudging the owner or owners of record and the beneficial owners of an Illinois land trust that is the record owner of the property building in contempt of court due to the failure to comply with the order requiring them to perform the court-ordered remedial actions to demolish, remove garbage, debris, and other noxious or unhealthy substances and materials from, repair, or enclose the building.

If a municipality or a person or persons other than the owner or owners of record and the beneficial owners of an Illinois land trust that is the record owner pay the cost of performing the court ordered remedial actions, demolition, removal of garbage, debris, and other noxious or unhealthy substances and materials, repair, or enclosure pursuant to a court order, the cost, including court costs, attorney's fees, statutory interest from the date the costs are incurred or the work is completed, whichever is later, and other costs related to the enforcement of this subsection, is recoverable from the owner or owners of the real estate and the beneficial owner of an Illinois land trust that is the record owner, and is a lien on the real estate. ; The lien is superior to all prior existing liens and encumbrances, except taxes, if, within 180 days after performing the court-ordered remedial actions the repair, removal, demolition, or enclosure, the municipality or the person or persons who paid the costs of performing the court-ordered remedial actions demolition, removal, repair, or enclosure shall file a notice of lien of the cost and expense incurred in the office of the recorder in the county in which the real estate is located or in the office of the registrar of the county if the real estate affected is registered under the Registered Titles (Torrens) Act. The recorded notice shall be in a form as is provided in subsection (a). An owner or tenant who institutes an action in circuit court seeking an order to compel the owner or owners of record and the beneficial owners of an Illinois land trust that is the record owner to demolish, remove materials from, repair, or enclose any dangerous or unsafe building and the property in which it is located, or to cause that action to be taken under this subsection may recover court costs and reasonable attorney's fees for instituting the action from the owner or owners of record of the building and the beneficial owner of Illinois land trust that is the record owner. Those costs and fees are a lien on the real estate as set forth in this subsection. All liens arising under this subsection for costs and expenses incurred by a municipality are reimbursable municipal advancements under Section 22-35 of the Property Tax Code. Upon payment of the lien costs and expenses by the owner of or a person interested in the property after the notice of lien has been filed, including the payment of interest as required under this subsection, the lien shall be released by the municipality or the person in whose name the lien has been filed or his or her assignee, and the release may be filed of record as in the case of filing a notice of lien. Unless the lien is enforced by a municipality under subsection (c), the lien may be enforced by foreclosure proceedings as in the case of mortgage foreclosures under Article XV of the Code of Civil Procedure or mechanics' lien foreclosures. An action to foreclose the this lien arising under this subsection may be commenced at any time after the date of filing of the notice of lien. The costs of foreclosure incurred by the municipality or the owner or tenant who instituted the proceeding under this subsection, including court costs, reasonable attorneys' fees, advances to preserve the property, and other costs related to the enforcement of this subsection, plus statutory interest from the date the costs were incurred or the work was completed, whichever is later, are a lien on the real estate and are recoverable by the municipality from the owner or owners, the beneficial owner of an Illinois land trust that is the record owner, and subsequent owners of the real estate.

All liens arising under the terms of this subsection (b) shall be assignable. After assignment, the lien shall continue to bear statutory interest as set forth in this subsection, but shall cease to be a reimbursable municipal advancement under Section 22-35 of the Property Tax Code. The assignee of the lien shall have the same power to enforce the lien as the assigning party, except that only a municipality the lien may enforce the lien not be enforced under subsection (c).

Statutory interest on the statutory liens arising under this subsection (b) shall be as set forth in Article II of the Code of Civil Procedure concerning judgement liens. Interest payable by the holder of a certificate of purchase of delinquent taxes shall accrue from the later of (i) the date the costs and expenses are incurred or the is completed, whichever is later, or (ii) the date of the tax sale represented by the certificate of purchase.

(c) In any case where a municipality has obtained a lien under subsection (a), (b), or (f), the municipality may enforce the lien under this subsection (c) in the same proceeding in which the lien is authorized.

A municipality desiring to enforce a lien under this subsection (c) shall petition the court to retain jurisdiction for foreclosure proceedings under this subsection. Notice of the petition shall be served, by certified or registered mail, on all persons who were named as defendants or appeared in the case served notice under subsection (a), (b), or (f). The court shall conduct a hearing on the petition not less than 15 days after the notice required under this subsection is served. If the court determines that the requirements of this subsection (c) have been satisfied, it shall grant the petition and retain jurisdiction over the matter until the foreclosure proceeding is completed. The costs of foreclosure incurred by the municipality, including court costs, reasonable attorneys' fees, advances to preserve the property, and other costs related to the enforcement of this subsection, plus statutory interest,as set forth in subsections (a), (b), and (f), are a lien on the real estate and are recoverable by the municipality from the owner or owners, the beneficial owner of an Illinois land trust that is the record owner, and subsequent owners of the real estate and from any persons otherwise obligated to satisfy the liens arising under subsections (a), (b), or (f). If the court denies the petition, the municipality may enforce the lien in a separate foreclosure action as provided in subsection (a), (b), or (f).

All persons designated in Section 15-1501 of the Code of Civil Procedure as necessary parties in a mortgage foreclosure action shall be joined as parties before issuance of an order of foreclosure. Persons designated in Section 15-1501 of the Code of Civil Procedure as permissible parties may also be joined as parties in the action.

The provisions of Article XV of the Code of Civil Procedure applicable to mortgage foreclosures shall apply to the foreclosure of a lien under this subsection (c), except to the extent that those provisions are inconsistent with this subsection. For purposes of foreclosures of liens under this subsection, however, the redemption period described in subsection (b) of Section 15-1603 of the Code of Civil Procedure shall end 60 days after the date of entry of the order of foreclosure.

(d) In addition to any other remedy provided by law, the corporate authorities of any municipality may file a complaint to petition the circuit court to have property declared abandoned under this subsection (d) or may file a petition under this subsection in any proceeding brought under subsection (a) or (b) if:

(1) Property taxes have not been paid the property has been tax delinquent for 2 or more consecutive years, the property is subject to one or more certificates of purchase of delinquent property taxes, or bills for water service for the property have been outstanding, or there has been no active water service to the property for 2 or more consecutive years;

(2) the property is unoccupied by persons legally in possession; and

(3) the property contains a dangerous or unsafe building.

The municipality shall make the petition of abandonment a matter of public record by filing a lis pendens notice in the office of the recorder in the county in which the property is located.

If a municipality files a complaint under this subsection, all persons having an interest of record in the property, including tax purchasers and the beneficial owners of any Illinois land trust having title to the property, shall be named as defendants in the petition and shall be served with process.

If a municipality files a petition of abandonment in a proceeding under subsection (a) or (b), notice of the petition shall be served by certified or registered mail on all persons who were served with a summons and a copy of the complaint under subsection (a) or (b). The holders of certificates of purchase of delinquent taxes at the time the petition of abandonment is filed under this subsection or subsections (a) or (b) shall be named as defendants in the petition and shall be served with process, pursuant to Section 21-410 of the Property Tax Code. In addition, service shall be had under Section 2-206 of the Code of Civil Procedure as in other cases affecting property.

The municipality, however, may proceed under this subsection in a proceeding brought under subsection (a) or (b). Notice of the petition shall be served by certified or registered mail on all persons who were served notice under subsection (a) or (b).

If the municipality proves that the conditions described in this subsection exist and the owner of record of the property or the beneficial owner of an Illinois land trust that is the record owner does not enter an appearance in the action, or, if title to the property is held by an Illinois land trust, if neither the owner of record nor the owner of the beneficial interest of the trust enters an appearance, the court shall declare the property abandoned.

If that determination is made, notice shall be sent by certified or registered mail to all persons who were served with the abandonment petition having an interest of record in the property, including tax purchasers and beneficial owners of any Illinois land trust having title to the property, stating that title to the property will be transferred to the municipality unless, within 30 days of the notice, the owner of record, the beneficial owner of an Illinois land trust that is the record owner, or a receiver appointed under Section 21-410 of the Property Tax Code enters an appearance in the action, or unless any other person having an interest in the property files with the court a request to demolish the dangerous or unsafe building or to put the building in safe condition.

If the owner of record, the beneficial owner of an Illinois land trust that is the record owner, or a receiver appointed under Section 21-410 of the Property Tax Code enters an appearance in the action within the 30 day period, the court shall vacate its order declaring the property abandoned and . In that case, the municipality may amend its complaint in order to initiate proceedings under subsection (a) or may continue the pending case filed under subsection (a).

If a request to demolish or repair the building is filed within the 30 day period, the court shall grant permission to the requesting party to demolish the building within 30 days or to restore the building to safe condition within 60 days after the request is granted. An extension of that period for up to 60 additional days may be given for good cause. If more than one person with an interest in the property files a timely request, preference shall be given to the person with the lien or other interest of the highest priority.

If the requesting party proves to the court that the building has been demolished or put in a safe condition within the period of time granted by the court, the court shall issue a quitclaim judicial deed for the property to the requesting party, conveying only the interest of the owner of record and the beneficial interest of an Illinois land trust that is the record owner, upon proof of payment to the municipality of all costs incurred by the municipality in connection with the action, plus statutory interest as set forth in this subsection including but not limited to court costs, attorney's fees, administrative costs, the costs, if any, associated with the building enclosure or removal, and receiver's certificates. The interest in the property so conveyed by the quitclaim deed shall be subject to all liens and encumbrances on the property. If In addition, if the interest is conveyed to a person holding a certificate of purchase of delinquent taxes for the property under the Property Tax Code receives a judicial quitclaim deed under this subsection, the conveyance shall be subject to the rights of redemption of all persons entitled to redeem under that Act, including the original owner of record.

If no person designated in this subsection with an interest in the property files a timely request or if the requesting party fails to demolish the building or put the building in safe condition within the time specified by the court, the municipality may petition the court to issue a judicial deed for the property to the municipality. A conveyance by judicial deed to the municipality shall operate to extinguish all existing ownership interests in, liens on, and other interest in the property, including tax liens, and shall extinguish the rights and interests of any and all holders of a bona fide certificate of purchase of the property for delinquent taxes. Any such bona fide certificate of purchase holder shall be entitled to a sale in error as prescribed under Section 21-310 of the Property Tax Code.

Statutory interest on the recovery of the costs and expenses allowed under this subsection shall be set forth in Article II of the Code of Civil Procedure concerning judgement liens.

(e) Each municipality may use the provisions of this subsection to expedite the removal of certain buildings that are a continuing hazard to the community in which they are located.

If a residential or commercial building is 3 stories or less in height as defined by the municipality's building code, and the corporate official designated to be in charge of enforcing the municipality's building code determines that the building is open and vacant and an immediate and continuing hazard to the community in which the building is located, then the official shall be authorized to post a notice not less than 2 feet by 2 feet in size on the front of the building. The notice shall be dated as of the date of the posting and shall state that unless the building is demolished, repaired, or enclosed, and unless any garbage, debris, and other hazardous, noxious, or unhealthy substances or materials are removed so that an immediate and continuing hazard to the community no longer exists, then the building may be demolished, repaired, or enclosed, or any garbage, debris, and other hazardous, noxious, or unhealthy substances or materials may be removed, by the municipality.

Not later than 30 days following the posting of the notice, the municipality shall do all of the following:

(1) Cause to be sent, by certified mail, return receipt requested, a Notice to Remediate to all owners of record of the property, the beneficial owners of any Illinois land trust having title to the property, and all lienholders of record in the property, stating the intent of the municipality to demolish, repair, or enclose the building or remove any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials if that action is not taken by the owner or owners.

(2) Cause to be published, in a newspaper published or circulated in the municipality where the building is located, a notice setting forth (i) the permanent tax index number and the address of the building, (ii) a statement that the property is open and vacant and constitutes an immediate and continuing hazard to the community, and (iii) a statement that the municipality intends to demolish, repair, or enclose the building or remove any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials if the owner or owners or lienholders of record fail to do so. This notice shall be published for 3 consecutive days.

(3) Cause to be recorded the Notice to Remediate mailed under paragraph (1) in the office of the recorder in the county in which the real estate is located or in the office of the registrar of titles of the county if the real estate is registered under the Registered Title (Torrens) Act.

Any person or persons with a current legal or equitable interest in the property objecting to the proposed actions of the corporate authorities may file his or her objection in an appropriate form in a court of competent jurisdiction.

If the building is not demolished, repaired, or enclosed, or the garbage, debris, or other hazardous, noxious, or unhealthy substances or materials are not removed, within 30 days of mailing the notice to the owners of record, the beneficial owners of any Illinois land trust having title to the property, and all lienholders of record in the property, or within 30 days of the last day of publication of the notice, whichever is later, the corporate authorities shall have the power to demolish, repair, or enclose the building or to remove any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials.

The municipality may proceed to demolish, repair, or enclose a building or remove any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials under this subsection within a 120-day period following the date of the mailing of the notice if the appropriate official determines that the demolition, repair, enclosure, or removal of any garbage, debris, or other hazardous, noxious, or unhealthy substances or materials is necessary to remedy the immediate and continuing hazard. If, however, before the municipality proceeds with any of the actions authorized by this subsection, any person with a legal or equitable interest in the property has sought a hearing under this subsection before a court and has served a copy of the complaint on the chief executive officer of the municipality, then the municipality shall not proceed with the demolition, repair, enclosure, or removal of garbage, debris, or other substances until the court determines that that action is necessary to remedy the hazard and issues an order authorizing the municipality to do so. If the court dismisses the action for want of prosecution, the municipality must send the objector a copy of the dismissal order and a letter stating that the demolition, repair, enclosure, or removal of garbage, debris, or other substances will proceed unless, within 30 days after the copy of the order and the letter are mailed, the objector moves to vacate the dismissal and serves a copy of the motion on the chief executive officer of the municipality. Notwithstanding any other law to the contrary, if the objector does not file a motion and give the required notice, if the motion is denied by the court, or if the action is again dismissed for want of prosecution, then the dismissal is with prejudice and the demolition, repair, enclosure, or removal may proceed forthwith.

Following the demolition, repair, or enclosure of a building, or the removal of garbage, debris, or other hazardous, noxious, or unhealthy substances or materials under this subsection, the municipality may file a notice of lien against the real estate for the cost of the demolition, repair, enclosure, or removal within 180 days after the repair, demolition, enclosure, or removal occurred, or the work was completed, whichever is later, for the cost and expense incurred, in the office of the recorder in the county in which the real estate is located. or in the office of the registrar of titles of the county if the real estate affected is registered under the Registered Titles (Torrens) Act; This lien has priority over the interests of those parties named in the Notice to Remediate mailed under paragraph (1) of this subsection and any party whose interest arose after the recordation of the notice to remediate required under paragraph (3), but not over the interests of third party purchasers or encumbrancers for value who obtained their interests in the property before obtaining actual or constructive notice of the notice to remediate lien. The recorded notice of lien shall consist of a sworn statement setting forth (i) a description of the real estate, such as the address or other description of the property, sufficient for its identification; (ii) the expenses and costs incurred by the municipality in undertaking the remedial actions authorized under this subsection, together with the interest rate payable thereon; (iii) the date or dates the costs and expenses were incurred by the municipality or the date the work was completed, whichever is later; (iv) a statement by the corporate official responsible for enforcing the building code that the building was open and vacant and constituted an immediate and continuing hazard to the community; (v) a statement by the corporate official that the required sign was posted on the building, that notice was sent by certified mail to the owners of record and the beneficial owner of an Illinois land trust that is the record owner, and that notice was published in accordance with this subsection; and (vi) a statement as to when and where the notice was published. The lien arising under authorized by this subsection may thereafter be released or enforced by the municipality as provided in subsection (a). The lien arising under this subsection is reimbursable municipal advancement under Section 22-35 of the Property Tax Code.

All liens arising under this subsection shall be assignable. After assignment, the lien shall continue to bear statutory interest as set forth in this subsection, but shall cease to be reimbursable municipal advancement under Section 22-35 of the Property Tax Code. The assignee of the lien shall have the same power to enforce the liens the assigning party, except that only a municipality may enforce the lien under subsection (c).

Statutory interest on the statutory lien arising under this subsection shall be as set forth in Article II of the Code of Civil Procedure concerning judgement liens. Interest payable by the holder of a certificate of purchase of delinquent taxes shall accrue from the later of (i) the date the costs and expenses are incurred or the work is completes, whichever is later, or (ii) the date of the tax sale represented by the certificate of purchase.

(f) The corporate authorities of each municipality may remove or cause the removal of, or otherwise environmentally remediate hazardous substances and petroleum products on, in, or under any abandoned or and unsafe property within the territory of a municipality. In addition, where preliminary evidence indicates the presence or likely presence of a hazardous substance or a petroleum product or a release or a substantial threat of a release of a hazardous substance or a petroleum product on, in, or under the property, the corporate authorities of the municipality may inspect the property and test for the presence or release of hazardous substances and petroleum products. In any county having adopted by referendum or otherwise a county health department as provided by Division 5-25 of the Counties Code or its predecessor, the county board of that county may exercise the above-described powers with regard to property within the territory of any city, village, or incorporated town having less than 50,000 population.

For purposes of this subsection (f):

(1) "property" or "real estate" means all real property, whether or not improved by a structure;

(2) "abandoned" means;

(A) property taxes have not been paid the property has been tax delinquent for 2 or more consecutive years or the property is subject to one or more certificates of purchase of delinquent property taxes;

(B) the property is unoccupied by persons legally in possession; and

(3) "unsafe" means property that presents an actual or imminent threat to public health and safety caused by the release of hazardous substances; and

(4) "hazardous substances" means the same as in Section 3.215 of the Environmental Protection Act.

The corporate authorities shall apply to the circuit court of the county in which the property is located (i) for an order allowing the municipality to enter the property and inspect and test substances on, in, or under the property; or (ii) for an order authorizing the corporate authorities to take action with respect to remediation of the property if conditions on the property, based on the inspection and testing authorized in paragraph (i), indicate the presence of hazardous substances or petroleum products. Remediation shall be deemed complete for purposes of paragraph (ii) above when the property satisfies Tier I, II, or III remediation objectives for the property's most recent usage, as established by the Environmental Protection Act, and the rules and regulations promulgated thereunder. Where, upon diligent search, the identity or whereabouts of the owner or owners of the property, including the lien holders of record and the beneficial owner of an Illinois land trust that is the record owner, is not ascertainable, notice mailed to or service of summons upon the person or persons in whose name the real estate was last assessed is sufficient notice under this subsection Section.

The court shall grant an order authorizing testing under paragraph (i) above upon a showing of preliminary evidence indicating the presence or likely presence of a hazardous substance or a petroleum product or a release of or a substantial threat of a release of a hazardous substance or a petroleum product on, in, or under abandoned property. The preliminary evidence may include, but is not limited to, evidence of prior use, visual site inspection, or records of prior environmental investigations. The testing authorized by paragraph (i) above shall include any type of investigation which is necessary for an environmental professional to determine the environmental condition of the property, including but not limited to performance of soil borings and groundwater monitoring. The court shall grant a remediation order under paragraph (ii) above where testing of the property indicates that it fails to meet the applicable remediation objectives. The hearing upon the application to the circuit court shall be expedited by the court and shall be given precedence over all other suits.

The cost of the inspection, testing, or remediation incurred by the municipality or by a lien holder of record, including court costs, attorney's fees, statutory interest from the date the work is completed and other costs related to the enforcement of this subsection Section, is a lien on the real estate; except that in any instances where a municipality incurs costs of inspection and testing but finds no hazardous substances or petroleum products on the property that present an actual or imminent threat to public health and safety, such costs are not recoverable from the owners nor are such costs a lien on the real estate. The lien is superior to all prior existing liens and encumbrances, except taxes and any lien obtained under subsection (a) or (e), if, within 180 days after the completion of the inspection, testing, or remediation, the municipality or the lien holder of record who incurred the cost and expense shall file a notice of lien for the cost and expense incurred in the office of the recorder in the county in which the real estate is located or in the office of the registrar of titles of the county if the real estate affected is registered under the Registered Titles (Torrens) Act. All liens arising under this subsection are reimbursable municipal advancements under Section 22-35 of the Property Tax Code.

The recorded notice must consist of a sworn statement setting out (i) a description of the real estate sufficient for its identification, (ii) the amount of money representing the cost and expense incurred, together with the interest rate payable thereon, and (iii) the date or dates when the inspection, testing, and remediation was completed cost and expense was incurred by the municipality or the lien holder of record. Upon payment of the lien amount, including the payment of interest as required under this subsection by the owner of or persons interested in the property after the notice of lien has been filed, a release of lien shall be issued by the municipality, the person in whose name the lien has been filed, or the assignee of the lien, and the release may be filed of record as in the case of filing notice of lien.

The lien may be enforced under subsection (c) or by foreclosure proceedings as in the case of mortgage foreclosures under Article XV of the Code of Civil Procedure or mechanics' lien foreclosures; provided that where the lien is enforced by foreclosure under subsection (c) or under either statute, the municipality may not proceed against the other assets of the owner or owners of the real estate or the beneficial owner of an Illinois land trust that is the record owner, for any costs that otherwise would be recoverable under this subsection Section but that remain unsatisfied after foreclosure, except where such additional recovery is authorized by separate environmental laws. An action to foreclose this lien may be commenced at any time after the date of filing of the notice of lien. The costs of foreclosure incurred by the municipality, including court costs, reasonable attorney's fees, advances to preserve the property, and other costs related to the enforcement of this subsection, plus statutory interest,as set forth in this subsection, from the date the remediation is completed, are a lien on the real estate.

All liens arising under this subsection (f) shall be assignable. After assignment, the lien shall continue to bear statutory interest as set forth in this subsection, but shall cease to be a reimbursable municipal advancement under Section 22-35 of the Property Tax Code. The assignee of the lien shall have the same power to enforce the lien as the assigning party, except that only a municipality the lien may enforce the lien not be enforced under subsection (c).

Statutory interest on the statutory liens arising under this subsection shall be as set forth in Article II of the Code of Civil Procedure concerning judgement liens. Interest payable by the holder of a certificate of purchase of delinquent taxes shall accrue from the later of (i) the date the remediation was completed, or (ii) the date of the tax sale represented by the certificate of purchase.

(g) In any case where a municipality has obtained a lien under subsection (a), (b), (d), or (f), the municipality may also bring an action for a money judgment against the owner or owners of the real estate in the amount of the lien, plus statutory interest, in the same manner as provided for bringing causes of action in Article II of the Code of Civil Procedure and, upon obtaining a judgment, file a judgment lien against all of the real estate of the owner or owners and enforce that lien as provided for in Article XII of the Code of Civil Procedure.

(Source: P.A. 91-162, eff. 7-16-99; 91-177, eff. 1-1-00; 91-357, eff. 7-29-99; 91-542, eff. 1-1-00; 91-561, eff. 1-1-00; 92-16, eff. 6-28-01; 92-574, eff. 6-26-02; 92-681, eff. 1-1-03; revised 2-18-03.)