Buying a Foreclosed Rental Property in Chicago? Think Twice!

Web Admin - Friday, April 22, 2016

foreclosed rental property, Illinois Real Estate Lawyers During the Great Recession, and the slow recovery thereafter, thousands of property foreclosures occurred across the country. Some individuals who were most affected by these foreclosures were renters living in a home or other dwelling where the landlord's property was foreclosed. 

In response to the harm that renters were suffering in Chicago, the Windy City specifically enacted an ordinance to help protect renters from foreclosure on properties located in the City of Chicago. 

The Keep Chicago Renting Ordinance was specifically crafted to help protect renters from foreclosures, and placed substantial obligations on landlords/property owners. However, anyone who is considering buying a foreclosed rental property in Chicago should be advised of these obligations under the law, and should be fully appraised of the potential consequences they could face as the new owner of the property. 

If you are considering purchasing a Chicago property for rental purposes, consider discussing your situation with a lawyer as soon as possible.

The Keep Chicago Renting Ordinance was enacted in the fall of 2013 and revised in the spring of 2015. When the ordinance was originally created, it carved out many protections for renters, but the amendments went further to strengthen and increase those protections. Many obligations are put onto any new owner who purchases the foreclosed rental property. 

Requirements for the Purchasing Landlord

New owners of a foreclosed rental property have many obligations to tenants under the Keep Chicago Renting Ordinance. Some of these obligations include:

- Providing written notice of new ownership to tenants. When a new owner takes over a foreclosed rental property, the new owner must provide written notice to all tenants. The notice must inform tenants of the change in ownership due to the foreclosure, identify the new owner, establish where to pay rent and how to request repairs, and must detail tenants’ rights under the Keep Chicago Renting Ordinance (an English, Spanish, Polish and Chinese translation of the Ordinance must be provided). Notice must be given within 21 days of taking ownership, or within seven days of learning a tenant’s identity. The notice can be hand delivered (to tenants over the age of 13) or mailed to the tenant’s address, and an additional notice must be posted on the primary entrance to the property. New owners must collect tenant disclosure forms. 

- Collecting tenant disclosure forms from all tenants. New owners must decide to keep renting to a tenant or to offer relocation assistance. A new owner can decide if a tenant will stay or go after gaining ownership of the property. Within 21 days of taking ownership, the owner must provide tenants with a form requesting information about the tenant. Upon return of the form from the tenant, the owner has 21 days to decide if the tenant will stay or go and must notify the tenant of the decision. 

- If the decision is to let the tenant stay, then the owner must provide the tenant with a renewal or extension of their rental agreement. Any rent increase cannot be more than 2 percent. 

- If the decision is that the tenant must go, then the owner is obligated to provide qualified tenants with a relocation fee of $10,600 within a week of the tenant vacating the rental property. 

These are just a few consideration potential buyers of foreclosed rental properties should consider. If you would like to discuss what legal obligations you might have to tenants of a foreclosed rental property upon assuming ownership, you can discuss your concerns with the skilled Illinois real estate lawyers at our firm. We serve the communities of Schaumburg, Des Plaines, Riverwoods, Kenilworth, Long Grove, Rolling Meadows, Barrington, Arlington Heights, Inverness, and Deer Park. Please call 847-934-6000 to speak to a member of our team.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.


Zoning of Real Estate

Web Admin - Tuesday, January 19, 2016

zoning of real estate, Illinois Real Estate AttorneyIf you are a business owner searching the market for commercial real estate, it is critical to be aware of, and understand, the various zoning laws. These laws will impact what you are allowed to do on the property. Therefore, determining the types of activities your business will engage in is also important when looking for commercial property. 

What Do Zoning Laws Do? 

Under Illinois law, local municipalities can utilize zoning laws (also referred to as zoning ordinances or land use regulations) in order to protect communities and regulate their growth. These laws establish zones of property that can only be used for specific purposes. There are numerous types of zones, including: 

1. Residential;

2. Commercial, such as retail stores, office buildings, and hotels;Industrial, which involves manufacturing facilities;

3. Agricultural, which are areas designated for farming activities; and

4. Recreational. 

Hence, for example, an individual would be prohibited from opening a manufacturing plant in an area zoned for residential use. However, most real estate, with the exception of single-family homes and lots, can be commercial real estate, as you have probably seen an old building once used for manufacturing changed into office or retail space. 

Zoning laws regulate various activities of businesses for numerous reasons, such as ensuring areas receive adequate light, to protect against the risk of fires and to minimize congestion on public streets. Some of the common laws enacted regulate: 

1. Noise level;

2. Appearance of the building (such as its height and proximity to other buildings);

3. Whether parking must be provided; and

4. Size, placement, and appearance of signs.

Depending on the type of business, the more or less relevant certain restrictions may be. For instance, the limits on the amount of noise that can be produced likely does not affect a grocery store, but may greatly impact a nightclub. Other regulations, such as those related to the appearance of signs attached to the building, will likely affect any type of commercial use of the property. 

The zoning laws make it important for business owners to check their local ordinances to ensure that they will be allowed to perform the types of activities necessary to operate the business. It is important to not simply rely on the activities that the previous tenant or owner conducted because past use is not an indicator that the same future use is permissible. For example, generally speaking, when a new law is passed that prohibits activity, the current occupant is allowed to continue to conduct the activity that is now prohibited (called non-conforming use). However, when a new occupant enters the property, he or she must conform to the law (it is impermissible to continue the nonconforming use).

Real Estate Help 

The success of your business can be significantly impacted by leasing or purchasing real property that does not fit with the activities your business needs to conduct. For more information about commercial property, contact a skilled Illinois real estate attorney today. Our firm provides legal representation for individuals in the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.



IRS Code Section 1031 Exchanges

Web Admin - Wednesday, December 23, 2015

IRS Code Section 1031 exchanges, Illinois real estate attorneyUsually, when an individual sells an investment property and enjoys a gain on the sale, that gain is taxed. However, it may be possible to postpone having to pay that tax under certain conditions. This is because of a special provision of the Internal Revenue Code (IRC) related to “like-kind” exchanges of property. 

Like-Kind Exchanges

Under IRC §1031, an exception to the tax on the sale of an investment property is made for transactions that involve a like-kind exchange. This type of transaction occurs when the property being sold and the property being acquired meet certain requirements. First, both properties must be held for investment purposes. This means that property held for personal use does not qualify as a like-kind exchange. 

The second requirement is that the sold property and the acquired property must be sufficiently similar to each other. Property that is like-kind must have the same nature, character, or class. Generally speaking, real estate is like-kind to other real estate. But, property within the United States is not like-kind to property outside of the United States. Both real and personal property can be like-kind, but they are not like-kind to each other. 

Some types of property specifically excluded from §1031 include, but are not limited to: 

1. Property held primarily for sale;

2. Stocks, bonds or notes;

3. Partnership interests; and

4. Certificates of trust. 

§1031 allows an individual to delay the payment of tax on a gain from the sale of property so long as the proceeds are reinvested in similar property. It is important to note that this allows for the payment of tax to be deferred. It does not mean that the individual will never have to pay tax on the gain. 

Reporting to the IRS 

When an individual completes a like-kind exchange, it must be reported to the Internal Revenue Service (IRS). To do this, the individual must fill out Form 8824 and file it along with his or her tax return for the year in which the exchange occurred. Form 8824 requires the individual to provide the following information: 

1. A description of the properties involved;

2. Date the properties were exchanged;

3. Whether a relationship exists between the parties involved in the exchange;

4. Value of both properties;Gain or loss on non-like-kind property involved;

5. Cash accepted or paid;

6. liabilities relieved or taken on; and

7. The adjusted basis of the property relinquished and any realized gain. It is important to follow the reporting requirements, as failing to do so can lead to the assessment of tax, penalties, or interest on the transaction. 

Help with Real Estate Issues 

Often, the sale of investment property leads to a significant tax event. By utilizing this special provision of the tax code, you can delay having to pay that tax. For more information related to the tax implications of buying and selling investment property, contact a skilled Illinois real estate attorney today. Our firm provides help to individuals in the communities of Inverness, Palatine, Schaumburg, Arlington Heights, Long Grove, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect.

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.


Forcible Entry and Detainer Actions

Web Admin - Friday, October 09, 2015

Illinois real estate attorney, forcible entry, eviction noticeIn some disputes involving a rental of property, it is possible for a landlord to evict a tenant. In order to successfully evict a tenant, the landlord must comply with the laws governing eviction proceedings. These laws are intended to provide for a means of obtaining evictions, while simultaneously protecting tenants from unjustified eviction attempts. 

Eviction Process 

Pursuant to Illinois law, under certain circumstances, it is possible for a landlord to file a claim, known as a forcible entry and detainer lawsuit, to evict a tenant. Some of the reasons a landlord may be justified in seeking eviction include, but are not limited to, the following: 

1. Failure to pay rent;

2. Violation of the lease terms; or

3. Remaining in the property after the agreed upon lease term has passed. 

In some cases when issues arise, the tenant may voluntarily leave the property. However, if the tenant refuses to relinquish the property, the landlord may be forced to file a forcible entry and detainer lawsuit to initiate eviction proceedings. The first step in the process is to serve notice on the tenant of the intention to terminate the lease. The best way to satisfy the service requirement is to personally hand the tenant the notice. Alternatively, it can be left with someone that lives in the property who is at least 13 years of age. The notice requirement is not satisfied if the notice is left with a guest or visitor to the property. 

If personal notice is not possible, constructive notice is also sufficient. Constructive notice can be accomplished by mailing it by certified or registered mail, return receipt requested. If there is no one in actual possession of the property, the notice can be attached to the property. After notice has been properly served and the issue has not been corrected or the tenant has not moved out, the lawsuit to evict can be filed.

A forcible entry and detainer claim seeks to obtain an “Order for Possession” from the court, which grants the landlord the right to take possession of the property. If the Order for Possession is granted, in most cases, the court will also grant a “stay of enforcement” in order to give the tenant time to find a new place to live. After the stay expires, the Sheriff’s Department will assist the landlord in removing the tenant from the property. 

In addition to the claim for the property, the landlord can join a claim to obtain rent due. However, if constructive notice was used to satisfy the service requirement and the tenant does not appear, the court can only rule on the possession claim and not whether any rent should be paid to the landlord. If the possession claim is decided, it is final, enforceable, and appealable. If the landlord wishes to continue with the rent claim, it remains pending. 

Real Estate Attorneys

Unfortunately, disputes between landlords and tenants do arise. When those issues are significant enough, eviction of the tenant may be sought. If you have questions about the rental of property, contact an experienced Illinois real estate attorney today. Our firm provides representation for individuals located throughout the northwest suburbs, including the communities of Long Grove, Arlington Heights, Schaumburg, Palatine, Inverness, Kenilworth, Riverwoods, Barrington, South Barrington, and Mount Prospect. 

About the Author: Founding partner of Drost, Gilbert, Andrew & Apicella, LLC, Colin Gilbert, received his J.D. from Chicago-Kent College of law in 2005. Colin argues cases across many practice areas including criminal defense, collections, civil litigation, real estate law, and corporate law. Colin is an active member of the Board of Governors of the Northwest Suburban Bar Association and the Illinois Creditors Bar Association. He is currently Vice President of the Arlington Heights Chamber of Commerce, and is a Commissioner for the Village of Arlington Heights. Colin has a 10.0 Attorney rating on Avvo, and was named one of the 2014 “Top 40 Under 40” Trial Lawyers in Illinois by the National Trial Lawyers Association.



Considerations for Owning a Vacation Home

Web Admin - Monday, August 31, 2015

Illinois real estate lawyerWhen owning a vacation home, there are several issues that need to be considered, including estate planning, how the property will be owned, and potential tax implications. If you plan on purchasing a vacation home with a friend or a family member, deciding how the property will be owned is important. Ordinarily, this type of ownership is what is known as tenancy in common. Under a tenancy in common ownership, each owner is named on the deed, along with each owner’s respective ownership percentage.

An alternative is for all of the prospective owners to form a limited liability company (LLC) and have it purchase and own the home. While this does create the additional task of forming the LLC, the individual assets of each member of the LLC are protected. A disadvantage is that the individuals of the LLC cannot claim property tax or mortgage interest deductions.

Tax Issues

The capital gains tax applies to the portion of the proceeds (upon the sale of a home) that exceeds the purchase price of the property plus the cost of any improvements made. For most taxpayers, the tax rate for long-term capital gains is 15 percent. An important provision of the tax code is the primary residence exclusion to the capital gains tax. This exclusion allows for married couples to exclude up to $500,000 ($250,000 for single owners) in capital gains for the sale of a principal residence.

Critically, the home must have been the principal residence (where you and your spouse live) for two of the last five years. This period does not need to be consecutively; rather, the home must have been the principal residence for a total of 24 months out of the last five years. The primary residence exclusion can be used multiple times, but cannot be used more than once every two years.

In relation to vacation homes, ordinarily the primary residence exclusion cannot be used (as a vacation home is normally not the principal residence). However, if the vacation home is established as the principal residence (by satisfying the two out of the past five year rule), the exclusion can be used. This may be very beneficial if a vacation home significantly increased in value.  

Passing Home to Heirs

Often, owners of vacation homes desire to keep those homes within the family. As a result, this requires planning for how the home will be passed down. There are numerous different methods of leaving property to a beneficiary. Each of those methods has different advantages and disadvantages. It is important to keep in mind that the following only briefly describes just three of the methods for passing on property. For more detailed information about estate planning, you should speak with an attorney.

For example, property can be passed to children or other heirs upon the owner’s death. This creates a step-up in basis for the beneficiary, which is a large advantage should the beneficiary sell the property. It also allows for the owner to retain complete control until death. However, it is not a tax-friendly option for the owner.

Alternatively, an owner can give the property as an outright gift. Under this method, the owner transfers the property by deed to the beneficiary. This accomplishes an immediate transfer of ownership. However, the federal gift tax limits the amount that can be transferred. Additionally, the step-up in basis is lost.

Finally, one option that is becoming more popular is to place the property into a trust for named beneficiaries. Under this plan, the owner reserves the right to use the property for a specified period of time. After the trust term expires, the beneficiaries take ownership of the property, with significantly reduced, or eliminated, federal and state taxes. Critically, for this method to work, the person who formed the trust must out-live the trust term.

For more information about the ownership of a vacation home, reach out to an experienced Illinois real estate attorney today. Our firm proudly represents individuals throughout the northwest suburbs, including the communities of Inverness, South Barrington, Arlington Heights, Long Grove, Mount Prospect, Riverwoods, Schaumburg, and Kenilworth.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

Buying a Home in Illinois: Inspection Contingencies in the Contract

Web Admin - Monday, November 18, 2013

A considerable amount of paperwork is involved when buying a home. To begin the process, buyers sign a detailed contract with the sellers which essentially takes the home off the market while other details--including securing financing, appraisals, and inspections--are finalized.

Two particularly important contracts often used in Illinois are the Multi-Board Residential Real Estate Contract (“Multi-Board”), which has now been released in its fifth version and the Chicago Realtors Contract.  These documents get signed by both the buyer and seller, and represent an agreement between them that the buyer will indeed buy the house, and that the seller will sell it for the agreed upon price. However, the contracts also contain sections called “contingencies,” which represent certain things that either must happen, or cannot happen, for the sale to go through.

For example, a critical contingency that the Multi-Board calls for is the Professional Inspections and Inspection Notices section. This contingency allows for the buyer to conduct, at their expense, different types of inspections of the house that they just agreed to purchase. Under the Multi-Board, a buyer may conduct, “home, radon, environmental, lead-based paint and/or lead-based paint hazards, and/or wood destroying insect infestation” inspections.

While most of the names of those inspections provide a good idea of what the inspector will examine, “home” inspections are more general. It is intended and written in the Multi Board that the home inspector goes in to examine the state of the MAJOR components house. The contract  gives some examples of what constitutes a major component:

• Heating and air conditioning

• Plumbing and well systems

• Electrical systems

• Roofs, walls, windows, ceilings, and floors

• Appliances

• Foundation

If the buyer and the seller cannot reach an agreement about how to handle the results of the inspection by ten business days after they signed the contract, then either party may cancel the contract. This makes the inspector’s job particularly important, since it requires someone who can distinguish important issues from minor or cosmetic ones. Since the real estate market changed from an ultra hot Sellers market in the early 2000s to a cold Buyers market the tenor of the home inspection issues has changed significantly. More and more deals are getting terminated over minor inspection issues. The drafters of these two Contracts specifically drafted them to avoid this decision. Often times these issues are being raised as the parties are getting bad advice from the realtor and/or the attorney involved.

But not all defects or problems may automatically allow a buyer to get out of purchasing the home. For example, under the inspection contingency in the Chicago Realtors Contract, “the Buyer agrees that minor repairs and maintenance costing less than $250 shall not constitute defects covered” by the portion of the agreement which allow a buyer to terminate the contract. In other words, squabbles over minor issues which could be solved for little money are rarely should be enough to tank the deal. Many prolonged legal disputes hinge on the exact question of whether a defect is sufficient to allow a buyer to refuse to purchase the home. This is the point when the professionals involved should provide the appropriate guidance to the Buyer(s) regarding what is acceptable to raise under the contract terms and what is not acceptable to raise.

The easy thing for the Realtor and/or attorneys involved to do is to blame the home inspector.  However, the home inspection company has a contract with the client setting forth their obligation to inspect the property in a certain manner regardless what the home inspection contingency states. It is the responsibility of the Realtor and attorney involved to translate the inspection report into the home inspection contingency limitations and set the Buyers expectations on what the Seller should reasonably be asked to repair.

Of course, home inspections represent just one of the many legal complexities surrounding the process of buying or selling a home. If you are considering going through that process, contact an experienced Rolling Meadows real estate attorney today. Our team can help you navigate the process from start to finish. We serve many northwest suburban areas including Palatine, Buffalo Grove, Barrington, and other nearby communities.

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