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February 1, 1995


Appeal from the Circuit Court of Cook County. Honorable Curtis Heaston, Judge Presiding.

Released for Publication March 21, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., and Rizzi, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

Pursuant to section 266 of the Revenue Act (Act) (35 ILCS 205/266 (West 1992)), petitioner, Paul Olmstead, purchased delinquent 1986-1989 general real estate taxes on property located at 4352-58 West Madison Street and 7-13 North Kostner Street in Chicago, consisting of seven stores designed and leased for retail use. Respondent, GSH Enterprises, Ltd. (GSH), an Illinois corporation, owns and operates a retail grocery and liquor business at 4356 West Madison Street pursuant to a lease executed between GSH and James Davis, the prior owner of the property.

After receiving a tax deed and making a demand for possession on all tenants, Olmstead filed a petition for possession on the basis that the issuance of the tax deed cancelled all existing leases relating to the property. GSH filed a motion in opposition, claiming that there was no basis for terminating its lease because it did not affect the merchantable title the tax deed conveyed to Olmstead. After a hearing, the trial court entered an order granting Olmstead possession of the leased properties.

On appeal, GSH asserts that its leasehold interest survives the issuance of the tax deed, which granted merchantable title to Olmstead. Not only is its lease a benefit to the property, GSH argues, but a retail store lease for a reasonable length at market rates freely negotiated between landlord and tenant is not a lien or encumbrance on the property. GSH contends that the legislature provided that the tax deed recipient receive merchantable title instead of allowing all leases to be cancelled by the issuance of a tax deed.

Olmstead responds that the lease was automatically cancelled by the issuance of the tax deed because the Act was intended to convey to the tax deed purchaser a title that is free and clear of all prior interests and claims. He contends that the lease lowers the property's market value, hinders its transferability, and opens it to the possibility of litigation.

Based on the following reasoning, we affirm.

In order to return tax delinquent properties to the tax rolls and to provide greater stability for tax deeds, the State legislature substantially revised the Revenue Act in 1951. (In re Application of County Treasurer of Cook County (1982), 92 Ill. 2d 400, 406, 442 N.E.2d 216, 65 Ill. Dec. 905.) Section 266 was amended to provide that "this section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title." (35 ILCS 205/266 (West 1992).) The purpose of the legislation relating to tax deeds is to provide a method for obtaining merchantable title ( In re Application of County Treasurer and Ex Officio County Collector (1981), 100 Ill. App. 3d 534, 426 N.E.2d 997, 55 Ill. Dec. 672) so that the collection of real estate taxes will increase and land will be free to once again enter the stream of commerce ( Cherin v. R&C Company (1957), 11 Ill. 2d 447, 452, 143 N.E.2d 235). The legislature intended that a tax deed grant title free from any cloud that could affect the property's marketability and its successful return to the tax rolls. ( Cherin, 11 Ill. 2d at 452, 143 N.E.2d 235.) The statute also gives the tax deed holder the right to possession. 35 ILCS 205/266 (West 1992).

Whether title to real estate is merchantable is a question of law for the court. ( Wilfong v. W. A. Schickedanz Agency, Inc. (1980), 85 Ill. App. 3d 333, 337, 406 N.E.2d 828, 40 Ill. Dec. 625.) Merchantable title is a title that a reasonably prudent person would accept as not subject to doubt or cloud that would affect its market value. ( Jones v. Melrose Park National Bank (1992), 228 Ill. App. 3d 249, 256, 592 N.E.2d 562, 170 Ill. Dec. 126.) While it is not perfect record title ( Wilfong, 85 Ill. App. 3d at 337, 406 N.E.2d 828), it is title that is readily transferred and reasonably secure against litigation or flaws decreasing market value. Jones, 228 Ill. App. 3d at 256, 592 N.E.2d 562; Wilfong, 85 Ill. App. 3d at 337, 406 N.E.2d 828.

When a tax deed is conveyed pursuant to section 266, any prior existing liens become void. ( Lincoln Park Federal Sav. & Loan Ass'n v. DRG, Inc. (1988), 175 Ill. App. 3d 176, 529 N.E.2d 771, 124 Ill. Dec. 790.) Although a lease is not an existing lien like a mortgage or a mechanics lien, it is an encumbrance. A lease conveys a lesser interest than a deed and gives possession of the leased premises for the full term of the lease. 8930 South Harlem Ltd. v. Moore (1979), 77 Ill. 2d 212, 220, 396 N.E.2d 1, 32 Ill. Dec. 888.

Olmstead further argues that GSH, who received notice as an interested party, lost any interest it had in the property because it did not exercise its right to redeem the taxes. To support that argument, Olmstead relies on People v. Cottine (1959), 20 Ill. App. 2d 562, 156 N.E.2d 774, where the issue was whether an alleged lessee had received notice of the issuance of the tax deed. The court determined that the alleged lessee was estopped from asserting any rights it had under the statute because he had received notice.

Although Cottine did not address the issue of whether a leasehold interest interferes with a merchantable title, its reasoning is helpful. In this case, GSH received notice, did not redeem the taxes, and did not object to the issuance of the tax ...

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