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Thursday, March 28, 2013

Lack of Notice to Lienholder Did Not Require Vacating Demolition Order

In 2007, the Village of Ringwood filed a lawsuit seeking a court order to allow it to demolish a fire-damaged apartment building owned by defendant. The complaint was filed under section 11-31-1(a) of the Illinois Municipal Code (65 ILCS 5/11-31-1(a)), which provides:
(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 and abandoned buildings 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.

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 if the owner or owners of the building, including the lien holders of record, after at least 15 days’ written notice by mail 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 to demolish, repair, or enclose the building or to remove garbage, debris, and other hazardous, noxious, or unhealthy substances or materials from the building. 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.
The trial court determined that the Village had the burden to prove: (1) that the building was “dangerous and unsafe” under section 11-31-1(a) and (2) that the building was “beyond reasonable repair."  The trial court ruled in favor of the Village, determining that it had met its burden. The trial court was strongly influenced by a letter, sent to the defendant over 6 months before the complaint was filed, directing defendant to “demolish the building.” The trial court determined that the letter gave defendant notice and a reasonable opportunity to repair the building. 
Defendant appealed the trial court’s demolition order to the Illinois Appellate Court.  He first argued that the Village failed to prove that the building was “dangerous and unsafe.” The Appellate Court rejected that argument because defendant had agreed that the damage to the building rendered it uninhabitable. Defendant next argued that the Village failed to prove that the building was damaged beyond reasonable repair. Under the Village zoning ordinance, a building that was damaged to the extent of more than 50% of its replacement cost could not be rebuilt or reoccupied. The court determined that defendant’s building was damaged to the extent of more than 50% and that the ordinance barred repair. Finally, defendant argued that the Village failed to comply with the 15 day notice provision of section 11-31-1(a). While the Appellate Court rejected this argument as to the defendant, finding that the letter was enough to provide notice, it also found that the Village should have given notice to the lienholders of record. Because the lienholders did not receive notice of the demolition order, the court vacated the demolition order and remanded the case for a new trial. 
On remand, the trial court found only one lienholder, which did not attend the subsequent trial on the demolition complaint. The Village produced a waiver, signed by the lienholder, expressly waiving its right to any notice, as provided in section 11-31-1(a).  The trial court ultimately entered an order directing the defendant to demolish the building within 30 days. 
The defendant again appealed to the Illinois Appellate Court arguing that the Village’s failure to serve the lienholder prior to the demolition suit and the lienholders absence at trial required the case to be remanded for a new trial on the complaint. The Appellate Court concluded that although the lienholder was entitled to notice of the demolition suit, it did not need to vacate the demolition order or remand for a new trial. The Appellate Court based its decision on defendant’s failure to prove that the lienholders interests were not protected in the underlying proceedings.  The Appellate Court reasoned that because the court vacated the demolition order, it provided the lienholder an opportunity to participate in the demolition suit, which it declined. Further, the Appellate Court reasoned that the remand was to allow the lienholder to raise objections to challenge the Village’s complaint, and it was not for the defendant to present fresh evidence. Village of Ringwood v. Foster, 2013 IL App (2d) 111221 (February 11, 2013).
Post Authored by Erin Baker, Ancel Glink


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