Real Estate Law

(Bradley, D-Marion) makes six changes to the recently enacted Transfer on Death Instrument to clear up title questions as follows. (1) Current law states that if a beneficiary has not accepted the TODI within six months of the owner’s death, any co-beneficiary, contingent beneficiary, legatee, heir, or personal representative of the deceased owner’s estate may file a written demand on the non-accepting beneficiary requiring the filing of an acceptance or disclaimer within 30 days. (2) House Bill 169 specifically defines the term “authorized representative” to mean “an agent under a power of attorney, a guardian, a standby guardian, a short-term or temporary guardian, an executor, an administrator, or an administrator to collect.” It was used in the TODI Act but not defined. (3) Proposal 98-5 protects any purchaser or mortgagee who acquires its title or lien from the beneficiaries of the real estate for value and without notice before commencement of any action. But the amendment does not relieve the beneficiaries of liability to the claimant under the Act. (4) Currently, a TODI may be used only for residential real estate as defined in the Residential Real Property Disclosure Act. This has caused several problems with residential cooperatives and condominiums that don’t fit with the TODI Act. House Bill 169 resolves this problem by deleting any reference to “units in residential cooperatives” and includes “common elements” as what may be passed by a TODI as it relates to a residential condominium unit. (5) The current Act doesn’t prohibit an agent from creating or revoking a TODI if properly authorized under the instrument appointing the agent, but the concept of an agent doing so conflicts with the other requirements for the execution or revocation of a TODI. House Bill 169 eliminates the power to create or revoke a TODI by an agent even if expressly authorized under the agency. (6) The current Act requires strict compliance with the signing, attestation, and acknowledgement provisions in Section 45. House Bill 169 adds the word “substantial” to this compliance requirement so that mere technical errors do not render the TODI void. Examples include if the notary public failed to include the names of the witnesses in its acknowledgement, or if the attestation clause fails to contain a provision stating the witnesses believed the owner to be of sound mind and memory.

(Evans, D-Chicago) extends the sunset date for requiring a thumbprint of the transferor in a Cook County residential real estate transaction from July 1, 2013 to July 1, 2018. Scheduled for hearing this Wednesday in House Judiciary Committee.

(Burke, Oak Lawn) prohibits from being used as a defense to a forcible entry and detainer action if a condominium association, master association, or common interest community association fails to maintain, repair, or replace the common elements, common areas, common facilities, or any other property under its jurisdiction or control. Scheduled for hearing next week in House Judiciary.

House Bill 2505 (Soto, D-Chicago) amends the Clerks of Courts Act to allow the county board to require its circuit court clerk in its county to retain not less than 1% nor more than 5% of fines, fees, and costs collected and disbursed for deposit in the Circuit Court Clerk Operation and Administrative Fund. It is not applicable if an amount or percentage is otherwise provided by statute. Exempts amounts held in trust for bail bond or child support payment amounts. Just introduced.

(Collins, D-Chicago) make a number of changes to the mortgage foreclosure article intending to better protect consumers. It also amends the Conveyances Act affecting the recording of deeds, mortgages, and other instruments. Amends the Conveyances Act. (1) Provides that those provisions also apply to the recording of assignments, mortgage releases, mortgage modifications, land equity loans, liens, lis pendens, and memoranda of judgment. (2) Changes the scope to instruments that affect interests in real property. (3) Provides that deeds and title papers are void until recorded (instead of void until recorded as to creditors and subsequent purchasers) with the recorder's office in the county in which the property is located. Just introduced.