Full Text of HB5282 96th General Assembly
HB5282enr 96TH GENERAL ASSEMBLY
|
|
|
HB5282 Enrolled |
|
LRB096 16285 AJO 31543 b |
|
| 1 |
| AN ACT concerning real property.
| 2 |
| Be it enacted by the People of the State of Illinois,
| 3 |
| represented in the General Assembly:
| 4 |
| Section 5. The Code of Civil Procedure is amended by | 5 |
| changing Section 12-112 as follows:
| 6 |
| (735 ILCS 5/12-112) (from Ch. 110, par. 12-112)
| 7 |
| Sec. 12-112. What liable to enforcement. All the lands, | 8 |
| tenements, real
estate, goods and chattels (except such as is | 9 |
| by law declared to be exempt)
of every person against whom any | 10 |
| judgment has been or shall be hereafter
entered in any court, | 11 |
| for any debt, damages, costs, or other sum of money,
shall be | 12 |
| liable to be sold upon such judgment. Any real property, or any
| 13 |
| beneficial interest in a land trust, or any interest in real | 14 |
| property held in a revocable inter vivos trust or revocable | 15 |
| inter vivos trusts created for estate planning purposes, held | 16 |
| in
tenancy by the entirety shall not be liable to be sold upon | 17 |
| judgment
entered on or after October 1, 1990 against only one | 18 |
| of the tenants, except if
the property was transferred into | 19 |
| tenancy by the entirety with the sole intent
to avoid the | 20 |
| payment of debts existing at the time of the transfer beyond | 21 |
| the
transferor's ability to pay those debts as they become due.
| 22 |
| However, any income from such property shall be subject to | 23 |
| garnishment as
provided in Part 7 of this Article XII, whether |
|
|
|
HB5282 Enrolled |
- 2 - |
LRB096 16285 AJO 31543 b |
|
| 1 |
| judgment has been entered
against one or both of the tenants.
| 2 |
| If the court authorizes the piercing of the ownership veil | 3 |
| pursuant to
Section 505 of the Illinois Marriage and | 4 |
| Dissolution of Marriage Act or Section
15 of the Illinois | 5 |
| Parentage Act of 1984, any assets determined to be those of
the | 6 |
| non-custodial parent, although not held in name of the
| 7 |
| non-custodial parent, shall be subject to attachment or other | 8 |
| provisional
remedy in accordance with the procedure prescribed | 9 |
| by this Code. The court may
not authorize attachment of
| 10 |
| property or any other provisional remedy under this paragraph | 11 |
| unless it has
obtained jurisdiction over the entity holding | 12 |
| title to the property by proper
service on that entity. With | 13 |
| respect to assets which are real property, no
order entered as | 14 |
| described in this paragraph shall affect the rights of bona
| 15 |
| fide purchasers, mortgagees, judgment creditors, or other lien | 16 |
| holders who
acquire their interests in the property prior to | 17 |
| the time a notice of lis
pendens pursuant to this Code or a | 18 |
| copy of the order is placed of record in the
office of the | 19 |
| recorder of deeds for the county in which the real property is
| 20 |
| located.
| 21 |
| This amendatory Act of 1995 (P.A. 89-438) is declarative of | 22 |
| existing law.
| 23 |
| This amendatory Act of 1997 (P.A. 90-514) is intended as a | 24 |
| clarification
of existing law
and not as a new enactment.
| 25 |
| (Source: P.A. 89-88, eff. 6-30-95; 89-438, eff. 12-15-95; | 26 |
| 90-476, eff.
1-1-98; 90-514, eff. 8-22-97; 90-655, eff. |
|
|
|
HB5282 Enrolled |
- 3 - |
LRB096 16285 AJO 31543 b |
|
| 1 |
| 7-30-98.)
| 2 |
| Section 10. The Joint Tenancy Act is amended by changing | 3 |
| Section 1c as follows:
| 4 |
| (765 ILCS 1005/1c) (from Ch. 76, par. 1c)
| 5 |
| Sec. 1c.
Whenever a devise, conveyance, assignment, or | 6 |
| other transfer of
property, including a beneficial interest in | 7 |
| a land trust, maintained or
intended for
maintenance as a | 8 |
| homestead by both husband and wife together during
coverture | 9 |
| shall be made and the instrument of devise, conveyance, | 10 |
| assignment,
or transfer expressly declares that the devise or | 11 |
| conveyance is made
to tenants by the
entirety, or if the | 12 |
| beneficial interest in a land trust is to be held as
tenants by | 13 |
| the entirety, the estate created shall be
deemed to be in | 14 |
| tenancy by the
entirety. Where the homestead is held in the | 15 |
| name or names of a trustee or trustees of a revocable inter | 16 |
| vivos trust or of revocable inter vivos trusts made by the | 17 |
| settlors of such trust or trusts who are husband and wife, and | 18 |
| the husband and wife are the primary beneficiaries of one or | 19 |
| both of the trusts so created, and the deed or deeds conveying | 20 |
| title to the homestead to the trustee or trustees of the trust | 21 |
| or trusts specifically state that the interests of the husband | 22 |
| and wife to the homestead property are to be held as tenants by | 23 |
| the entirety, the estate created shall be deemed to be a | 24 |
| tenancy by the entirety. Subject to the provisions of paragraph |
|
|
|
HB5282 Enrolled |
- 4 - |
LRB096 16285 AJO 31543 b |
|
| 1 |
| (d) of Section 2 and
unless otherwise assented to in writing by | 2 |
| both tenants by the entirety,
the estate in tenancy by the | 3 |
| entirety so created shall exist only if,
and as long as, the | 4 |
| tenants are and remain married to each other, and upon
the | 5 |
| death of either such tenant the survivor shall retain the | 6 |
| entire
estate; provided that, upon a judgment of dissolution of | 7 |
| marriage or of
declaration of invalidity of marriage, the | 8 |
| estate shall, by operation of
law, become a tenancy in common | 9 |
| until and unless the court directs
otherwise; provided further | 10 |
| that the estate shall, by operation of law,
become a joint | 11 |
| tenancy upon the creation and maintenance by both spouses
| 12 |
| together of other property as a homestead. A devise, | 13 |
| conveyance,
assignment, or other transfer to 2 grantees who are | 14 |
| not in fact husband and
wife that purports to create an estate | 15 |
| by the entirety shall be construed as
having created an estate | 16 |
| in joint tenancy. An estate in tenancy by the
entirety may be | 17 |
| created notwithstanding the fact that a grantor is or the
| 18 |
| grantors are also named as a grantee or the grantees in a deed. | 19 |
| No deed,
contract for deed, mortgage, or lease of homestead | 20 |
| property held in tenancy
by the entirety shall be effective | 21 |
| unless signed by both tenants. This
Section shall not apply to | 22 |
| nor operate to change the effect of any devise
or conveyance.
| 23 |
| This amendatory Act of 1995 is declarative of existing law.
| 24 |
| (Source: P.A. 92-136, eff. 1-1-02.)
|
|