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02/02/94 PETITION FOR DECLARATION SALE ERROR v.

February 2, 1994

IN RE PETITION FOR DECLARATION OF SALE IN ERROR, (DEAN L. JOHNSON, PETITIONER-APPELLEE,
v.
PEOPLE OF THE STATE OF ILLINOIS EX REL. EDWARD T. O'CONNOR, TREASURER AND EX-OFFICIO COLLECTOR OF THE COUNTY OF PEORIA, RESPONDENT-APPELLANT.)



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Nos. 88-TX-52, 89-TX-89, 90-TX-54, 90-TX-55, 90-TX-56. Honorable Robert J. Cashen, Judge, Presiding.

Rehearing Denied and Released for Publication March 8, 1994. As Corrected April 1, 1994.

Present - Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

This consolidated appeal involves five separate petitions for sales in error brought by petitioner, Dean L. Johnson (Johnson), pursuant to the Revenue Act of 1939, 35 ILCS 205/1 et seq. (West 1992) (Act). The trial court granted petitioner's request for sale in error on all of the parcels, and respondent, the People of the State of Illinois ex rel. Edward T. O'Connor, Treasurer and ex-officio Collector of the County of Peoria (Collector), appeals. We reverse.

For purposes of organization, we will refer to the five petitions by their trial court docket numbers. The parties have stipulated to certain facts concerning the dates the parcels were purchased and the dates the petitions for sale in error were filed: (1) 88-TX-52, parcels purchased on 12/16/85; petition filed on 8/24/88; (2) 89-TX-89, parcels purchased on 12/15/86; petition filed on 8/8/89; (3) 90-TX-54, parcels purchased on 12/7/87; petition filed on 7/24/90; (4) 90-TX-55, parcels purchased on 12/16/85; petition filed on 7/24/90; (5) 90-TX-56, parcels purchased on 12/15/86; petition filed on 7/24/90.

Pursuant to 35 ILCS 205/260 (West 1992), a tax purchaser may pursue a declaration for a sale in error if the property is subject to certain enumerated occurrences. In the instant case, there were two occurrences alleged by Johnson under section 260: that a substantial destruction to the improvements of the property occurred after the tax sale, and that the property was the subject of a bankruptcy petition filed after the tax sale. Johnson also alleged grounds for a sale in error pursuant to 35 ILCS 205/271.1 (West 1992), which allows a tax purchaser to pursue a sale in error if the property is subject to a municipal lien. The Collector does not contest the validity of these grounds.

The Collector argues that the trial court erred in applying a five-year statute of limitations to the petitions for sale in error pursuant to Burroughs v. Tazewell County (1982), 110 Ill. App. 3d 464, 442 N.E.2d 623, appeal denied 92 Ill. 2d 574. He contends that Johnson failed to surrender his certificates of purchase (which are issued to a tax purchaser for each year's delinquent taxes paid on each property) and neglected to complete the sale in error proceedings within the time prescribed for taking out a tax deed, which is one year following the expiration of the two-year redemption period pursuant to 35 ILCS 205/271 (West 1992); because Johnson failed to satisfy these statutory requirements, the certificates of purchase became null and void by operation of law.

Johnson responds that the trial court was correct in applying a five-year statute of limitations pursuant to Burroughs, claiming that the Collector's reading of section 271 is incorrect because this section is only a limitation on tax deeds and the certificates of purchase that underlie them. He contends that section 271 cannot be read as a limitation on a party's ability to petition for a sale in error because sales in error are not addressed in that section.

We agree with Johnson that the statute of limitations is five years, so the issue before this court is whether the time requirements for acquiring a tax deed under section 271 are applicable to petitions for sale in error.

Generally, and for purposes of our Discussion, a property owner who has a right to redemption must redeem the property within two years after the date of the tax sale. (35 ILCS 205/253(b) (West 1992).) The period of redemption may be extended by the certificate holder to three years after the date of the tax sale pursuant to 35 ILCS 205/263 (West 1992). Absent an extension of the redemption period, a certificate holder must take out a tax deed within three years after the date of the tax sale. In the instant case, Johnson did not extend the redemption period. Therefore, under section 271, he was required to take out a tax deed within one year after the expiration of the redemption period.

The procedures for acquiring a declaration for a sale in error are contained in sections 260 and 271.1. Section 260 provides, in relevant part,

"Whenever upon application of the county collector, tax purchaser or a municipality which owns or has owned the property ordered sold it shall be made to appear to the satisfaction of the court which ordered the property sold * * * solely upon application of the tax purchaser that such a voluntary or involuntary [bankruptcy] petition has been filed subsequent to the tax sale and prior to the issuance of the tax deed, or solely upon application of the tax purchaser that the improvements upon property sold have been substantially destroyed or rendered uninhabitable or otherwise unfit for occupancy subsequent to the tax sale and prior to the issuance of a tax deed * * * the court which ordered the property sold shall declare such sale to be a sale in error * * * and the county collector shall, on demand of the owner of the certificate of such sale, refund the amount paid, pay any interest and costs as may be ordered pursuant to Section 260.1 of this Act, and cancel such certificate so far as it relates to such tract or lots." 35 ILCS 205/260 (West 1992).

Thus, section 260 delineates who may apply for a sale in error, where and on what grounds the application must be made, when these grounds must occur, and the county collector's responsibilities in ...


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