The Trusted Adviser March 2011 | Volume 4 • Number 2




In re County Treasurer and ex officio County Collector of Lake County, 403 Ill App 3d 985, 935 NE2d 570, 343 Ill Dec 562 (2nd D, 2010).

Facts:Sylvia Muskat was the owner of a two-story building (the Real Estate) in Waukegan, Illinois. Muskat died and her estate was probated in 2000. By her will, Muskat divided her possessions equally between her children, Nikki Henkin and Julian Muskat. The probate case file contained an "affidavit of heirship" naming Julian executor of the estate, indicating that Nikki and Julian were Muskat's sole surviving heirs, and showing Nikki's street address in New York City. The file also contained a "notice of motion" from 2004, and an order dated 2006, both listing Nikki's New York address.

Taxes were not paid on the Real Estate during 2004, leading the Lake County Collector to complete a tax sale of the Real Estate by the end of 2005. Lake County sent a "take notice form" via certified mail to the addressee of record, Sylvia Muskat, in January 2006. In April 2008, Nikki filed an appearance in Sylvia's probate case. In May 2008, the purchaser of the Real Estate at the tax sale filed a petition for a tax deed. Take notices were sent to five parties: (1) Sylvia's estate, (2) Julian, (3) Nikki, (4) "the occupant of the first floor," and (5) "the occupant of the second floor." All five notices were sent to the address of the Real Estate via certified mail. Julian, who was living on the second floor of the Real Estate, accepted the notices addressed to both him and the estate, but did not retrieve the notices delivered to the first floor. The first notice addressed to Nikki was not claimed, but Julian accepted a second notice addressed to her.

In October 2008, the period of redemption passed for the property. The purchaser applied for a tax deed, stating among other things that the addressee of record, Sylvia, left her property to Julian and Nikki in equal shares, and that "[d]iligent inquiry was made as to the identity, address and location of each person with an interest in the Property." In November 2008, Julian objected to the tax deed application on behalf of him and the estate (collectively, Julian), based on the purchaser's failure to diligently locate Nikki and serve her or her attorney. The purchaser answered the objection in December 2008, asserting that although Nikki was an interested party, the tax code required only that the purchaser serve Sylvia's estate, the only real party of interest regarding the Real Estate.

The trial court subsequently ruled in favor of the purchaser and directed the county to issue a tax deed. Julian filed a motion for reconsideration which was denied, prompting Julian to appeal.

Holding:Reversed and remanded. First, the court weighed whether the purchaser was required to serve Nikki with notice of the tax sale and the expiration of the redemption period. Under 35 ILCS 200/22-10, a purchaser must notify "owners" and "interested parties," among others. In this case, Nikki was both an owner and an interested party. The court defined Nikki's rights based on her status as a devisee of Sylvia's will. Devisees have rights to redemption and ownership to real property devised to them. Because the law presumes that devisees will accept testamentary gifts beneficial to them, admission of a will to probate is sufficient to find a transfer title of real property to the devisees. In this case, Nikki's ownership rights made her an owner under the code, and an interested party with a right to redeem.

Second, the court considered whether the purchaser failed to adequately serve Nikki. Although the purchaser sent two certified letters to Nikki at the address of the Real Estate, the court found that the purchaser failed to comply with the code. Under 35 ILCS 200/22-15, if an interest party cannot be located within the county, the purchaser must attempt to serve the party at "his or her residence, if ascertainable." Purchaser asserted in the application for a tax deed that a diligent search for Nikki's address was made, including examination of the probate record. Nikki's address and that of her attorney were located in the probate record in numerous locations, yet no effort was made to serve either of them with notice. Therefore, purchaser failed to comply with the code provisions and the trial court erred in directing the issuance of a tax deed.






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[Last update: 3-4-11]