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January 20, 1998


Appeal from the Circuit Court of Cook County. Honorable James Henry, Judge Presiding.

Presiding Justice Mcnulty delivered the opinion of the court. Rakowski and Cousins, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE MCNULTY delivered the opinion of the court:

In this case we must decide what constitutes a sufficient interest in real estate to give a party the right to redeem the property following a tax sale. The Property Tax Code establishes that the holder of legal or equitable title to property has a right to redeem the property, even if the title is not recorded. 35 ILCS 200/21-345 (West 1996). Here we face the question of whether the record title alone, without legal or equitable title, is sufficient. We hold that following an unrecorded sale of property, both the new owner and the seller who holds the title of record have the right to redeem.

Halove Abram owned two properties in Chicago at the time of her death in 1986, and she had recorded her title to the properties. Her sister, Chappel Cummings, inherited all of Abram's property. Due to Cummings' incompetence, Cummings' daughter, Agnes Lee, had authority to act on her behalf with respect to her property, including the real estate in Chicago. In 1989 Lee signed a contract to sell those properties to Alfred Smith, and later she signed warranty deeds conveying the properties to Smith. Smith never recorded the deeds.

The Cook County collector sent tax bills addressed to "Halove Abram or current owner." Both Smith and Lee failed to pay property taxes for one of the lots for 1990 and 1991. In 1993 Fitz Corporation purchased the property at a tax sale, and later Fitz sold its interest in the property to Loop Mortgage Corporation. Loop petitioned for a tax deed in 1995. Loop sent notice to Smith, Cummings, and Lee, amongst others, informing them that the redemption period would end September 1, 1995. On July 12, 1995, Lee, on behalf of Cummings, gave Murray Williams power of attorney to redeem the property. Williams made the necessary redemption payment on August 17, 1995.

Loop petitioned to set aside the redemption, arguing that Lee, Cummings and Williams all lacked redeemable interests in the property because Lee conveyed the deed to Smith. Lee argued that Smith procured the deed by fraud and that even absent proof of fraud she had a sufficient redeemable interest. Following trial the court found that Smith still owed Lee payments promised in the entire transaction of the two properties, but Smith held legal title to the properties. Because of Smith's unrecorded warranty deed, Lee lacked a redeemable interest in the property.

Both the legislature and the courts have established the fundamental principles underlying redemption. A person seeking to redeem

"need only have an undefined interest in the property. [Citations.] The person alleging the right to redeem bears the burden of showing he is a proper person to redeem under the law. [Citation.] The right of a holder of a tax certificate after a tax sale to get a deed is subservient to the right of the owner or person interested in the property to redeem. [Citation.] Redemptions are looked upon with favor, and, unless injury results to the purchaser at the sale, a liberal construction will be given to redemption laws. [Citations.] The mere failure of the tax certificate holder to get a deed does not injure him, since the purchaser recovers the amount paid for the certificate from the court after the redemption." In re Application of Du Page County Collector, 98 Ill. App. 3d 950, 952, 424 N.E.2d 1204, 54 Ill. Dec. 301 (1981).

The Property Tax Code provides:

"A right to redeem property from any sale under this Code shall exist in any owner or person interested in that property, other than an undisclosed beneficiary of an Illinois land trust, whether or not the interest in the property sold is recorded or filed." 35 ILCS 200/21-345 (West 1996).

The legislature enacted this section after our supreme court decided Weiner v. Jobst, 22 Ill. 2d 11, 174 N.E.2d 561 (1961). In Weiner the owner of legal title to property attempted to redeem the property following a tax sale, but the court found the redemption ineffective because the prior owner who conveyed the deed to the current owner did not have a properly recorded title. The court held:

" stranger to the record title has no right to redeem. *** When the attempted redemption was made, [the legal title holder] had no interest of record in the property. And admittedly, he *** was, instead, a complete stranger to the chain of title." Weiner, 22 Ill. 2d at 15.

Thus, under Weiner, only the owner of record could redeem the property, although that party long before the suit deeded the legal title to the ...

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