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.



Remedies for Condominium Unpaid Assessments and Fines

Web Admin - Friday, August 07, 2015

Illinois vacation home fines, real estate attorneyA condominium or townhome association has the ability to assess unit owners with common expenses and fines (collectively, “assessments”). When unit owners fail to pay these assessments when they become due, the association can pursue legal action to enforce payment. These actions can result in significant consequences against unit owners, including the potential for eviction.

Foreclosure and Eviction

One option for an association is to place a lien on the unit, which often occurs automatically when an assessment is not paid. If the past due assessment is still not paid, the lien may be foreclosed on in court. This will result in a court-ordered sale of the owner’s equity in the unit. Further, foreclosure is possible regardless of whether the unit owner is current on all mortgage payments.

Under Illinois law, it is also possible to evict a unit owner or tenant who is delinquent on the payment of any assessments. To initiate this process, the association must serve on the unit owner, through the mail, a 30 Day Notice and Demand for Possession (demand, with return receipt requested. If the demand is properly mailed, effective notice is deemed to have occurred, which means that the demand does not actually have to be received by the unit owner.

The effect of the demand is that a unit owner has 30 days to pay the outstanding amount. If the unit owner fails to make this payment, an association can sue to evict the owner from the unit through a forcible entry and detainer action. Included in the lawsuit will be a claim for all unpaid assessments and reasonable attorney fees and costs.

In some circumstances, partial payment may resolve the issue because an association can agree to withdraw the demand in exchange for partial payment. However, if the association does not agree to withdraw the demand, partial payment does not affect the eviction or demand. If after 30 days the partial payments do not total the entire amount due, the association can proceed with the forcible entry and detainer action.

If successful, the court will enter a judgment evicting the tenant or homeowner. However, by law, any enforcement of the eviction judgment must be stayed for at least 60 days, but not more than 180 days, at the discretion of the court.

After the eviction is complete, the association can lease the unit for a period of up to 13 months (which may be extended by court order) until all unpaid assessments have been paid. After all of these have been paid, the unit owner can regain possession of the unit by filing a motion with the court to vacate the judgment of possession.

Help with Real Estate Legal Issues

If you would like more information about real estate transactions or how disputes related to real estate are resolved, speak with a skilled Illinois real estate attorney today. Our firm provides diligent representation for individuals throughout the northwest suburbs, in communities such as Mount Prospect, Inverness, Palatine, Long Grove, and Riverwoods.

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. 

Chicago Landlord Tenant Ordinance

Web Admin - Friday, May 08, 2015

landlord tenant ordinance, Schaumburg real estate lawyerOver 60 percent of Chicago residents live in rental housing. As a result, the laws governing the landlord-tenant relationship are very important. The Chicago Landlord Tenant Ordinance governs a majority of the residential rental agreements within the city. The Ordinance places certain duties on both landlords and tenants.

What Does the Ordinance Do?

Generally, the Ordinance covers any rental units under written or oral leases. However, the Ordinance does not cover the following:

  • - Units in owner-occupied buildings that have less than six units;
  • - Units in hotels, motels, inns, or bed-and-breakfast establishments, unless rent is paid monthly and the unit is occupied by the tenant for more than 32 days;
  • - Dormitories or shelters; and
  • - Owner-occupied co-operatives.

The Ordinance requires that tenants abide by all of the obligations of the Municipal Code. Some of these duties include, but are not limited to, the following:

  • - Maintaining smoke and carbon monoxide detectors (for example, by ensuring that working batteries are in the detectors);
  • - Keeping the unit as safe as the conditions of the premises permits;
  • - Avoiding disturbing other tenants; and
  • - Not causing any damage to the unit.

Landlords are also placed under duties by the Ordinance. A landlord is required to maintain the property in compliance with the Municipal Code. This includes maintaining heating facilities, the structural integrity of the building, and the building’s plumbing system, among numerous other items.

Further, a landlord cannot require a tenant to renew a lease agreement more than 90 days before an existing agreement ends. Additionally, a landlord must provide a tenant with at least 30 days written notice if the rental agreement will not be renewed. If this required notice is not given, a tenant may remain in the unit for 60 days under the same terms and conditions as the last month of the existing agreement.

Remedies for Defects

If a property has a minor defect, a tenant’s first step to remedy the issue is to provide written notice to the landlord indicating that if the landlord does not correct the defect, the tenant will have the defect corrected at the landlord’s expense. The landlord has 14 days to correct the issue before the tenant can take action. The cost to correct the issue cannot be more than the greater of $500 or one half of the monthly rent. After 14 days, if the landlord has not taken corrective action, the tenant can have the repairs completed. The tenant can then submit to the landlord a paid bill and deduct the cost of the work from the rent.

For a material noncompliance to maintain the premises, a tenant may withhold rent in an amount that reasonably reflects a reduction in value of the premises as a result of that material noncompliance. This withholding of rent may continue for as long as the material noncompliance continues. However, the withholding can only begin after 14 days have passed since the landlord was given written notice of the condition.  

If you would like more information about the rights and obligations of the parties involved in a residential rental relationship, you should speak with an experienced Illinois real estate attorney today. Whether you are a landlord or tenant, Drost, Gilbert, Andrew & Apicella, LLC can help. Our office proudly represents clients in the Schaumburg, Palatine, and Long Grove areas, among many others. 

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.

New Realtor Form Contract Comes into Use

Web Admin - Thursday, August 14, 2014

IRELA new real estate formThe Illinois Real Estate Lawyers Association (“IRELA”), along with a variety of other real estate organizations, maintains a form contract for realtors and their clients to use when selling a home. The IRELA recently released their new version of this, known as the Multi-Board Residential Real Estate Contract version 6.0, and this new contract is now in use. The new version makes a variety of changes to the old 5.0 version, many of which are technical or procedurally based. However, the contract does have some new language of which buyers and sellers should be aware.

The contract now allows for more options when dealing with escrow during the closing. It also changes how professional inspections work, requiring sellers to request portions of inspection reports. The new contract also alters how the timeline for mortgage financing affects the seller’s ability to back out of the deal. Finally, the contract changes the seller's responsibilities as far as disclosing potential issues with the home. Importantly, these are just some of the changes made during the board's updating of the contract. It is important that you consult with a real estate attorney during any real estate transaction to make sure you understand the scope of the new contract.

Version 6.0 Changes

The new 6.0 version of the Multi-Board contract contains a variety of changes from the earlier 5.0 document. First, the 6.0 document contains a new paragraph regarding who holds on to the buyer's earnest money until the closing goes through. In the prior contract, options were only available for the buyer's broker or the seller's broker to manage that. Now, the contract allows for third parties, like title companies, to hold the money in escrow.

The new contract also modifies how buyers can void the contract after a failed inspection. The contract allows buyers to hire professional inspectors to check the house for problems like radon or insect infestations. If the inspectors discover such an issue, then the buyer has the option of voiding the sale contract. However, the new 6.0 version allows the seller to request the portion of the report that the buyer is using as grounds for cancellation.

The updated document also alters the timeline for the buyer to obtain mortgage financing. The old contract used to require a “firm written commitment” from the bank that financing would be forthcoming. However, banks seldom issue such statements quickly, so the new version merely requires the buyer to prove that they have submitted the loan for underwriting by a certain date, and that the bank has given them clearance to close by another date.

The contract also requires the seller to make a variety of representations to the buyer, such as stating that the home is not currently subject to a boundary line dispute. The new 6.0 version of the contract adds extra notification duties to the seller, forcing them to make all the same representations again at closing, which means that any changed circumstances would require an update.

Contact Our Real Estate Lawyers Today

If you are currently looking to buy a new house or another piece of property, contact an experienced Illinois real estate attorney today. At Drost, Gilbert, Andrew & Apicella, LLC, our team of skilled professionals counsels clients in towns all over the northwest suburbs, including in Arlington Heights, Long Grove, and South Barrington.

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.

Commercial Leasing in the Chicago Suburbs

Web Admin - Thursday, May 22, 2014

The suburban Chicago commercial leasing market has seen a slight recovery as compared to the depths of the recession, but the revival appears to be sluggish. According to Crain’s Chicago Business, the market currently has an overall vacancy of approximately 24.4 percent. That number is an improvement over the low point of the recession, 25.4 percent in 2010, but it is still a long way off from 2006, during which it fell below 20 percent.

Despite this merely modest improvement, there has actually been a noticeable increase in asking rents, up 12 percent to an average of $21.94. Some experts believe that this rise in asking price relates to the fact that most owners who were in danger of losing their properties have either recovered or gotten out of the market by now. This means that current landholders are more apt to sit and wait than they are to engage in a race to the bottom over prices as they had done in the past. Consequently, hiring an attorney to help negotiate the lease can be even more beneficial.

The Benefits of Involving an Attorney

Both first time lessees and experienced business owners can benefit from investing in a savvy real estate attorney during lease negotiations. Leases are legal documents just like any other contract, and just like many other contracts, they can be filled with dense legalese. Lawyers specialize in dissecting such complex provisions, so that the business owner can be sure they understand exactly what they are agreeing to.

Yet the attorney can add more value than simply translating the lease. Experienced real estate attorneys understand the sorts of provisions likely to appear in a lease. This means that getting an attorney involved early can help negotiations move along more smoothly. Often, business owners, especially those new to commercial leasing, sketch out broad strokes of the lease in negotiations, focusing on key points like price and size of the space. Then, once they feel they have reached a final agreement, the landlord provides the full lease, and the lessee discovers other provisions like janitorial services that the initial negotiations did not cover.

This necessitates reopening negotiations after it appeared that everything had been finalized. Involving a lawyer earlier in the process can prevent such problems from arising. Lawyers with experience negotiating commercial leases can help business owners see the full field of lease terms and allow them to negotiate with confidence.         

Whether you are just beginning to think about buying space or you already have a potential lease ready for review, reach out to an Illinois commercial real estate attorney today. Our experienced team can help analyze your lease and aid you in negotiating the most advantageous deal possible. We serve clients across the northwest suburbs, including in Arlington Heights, Long Grove, 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.

Home Sale Contingencies in Real Estate Contracts

Web Admin - Thursday, April 10, 2014

illinois real estate contingencies lawyerBuying a new home is a complicated task that requires a lot of pieces to fall into place in just the right way. For many people, one of these pieces is the ability to sell their current home. Often, people need to sell their old home first to make sure they have enough cash on hand to afford the new one. Of course, sometimes that is not feasible, and people will want to put an offer down on a new house before they have managed to sell their old one. When this happens, people can use a “home sale contingency” clause in their contract to purchase the new home. In short, a home sale contingency clause voids the contract for the sale of the new house in the event that the buyer is unable to sell their old one.

Types of Home Sale Contingencies

There are two broad types of home sale contingencies that lawyers can build into a contract: a “sale and closing contingency” and a “closing contingency.” The sale and closing contingency is used in the event that the buyer has yet to find a prospective buyer for their own home. Conversely, buyers use closing contingencies when they have a prospective buyer who has made an offer for their home, but the sale has not yet closed. In this instance, the contingency acts as an insurance policy against the sale of the buyer’s home falling through at the last minute. While these two types of clauses function in largely the same way, both of them voiding the sale of the new house if the old one does not sell, the sale and closing contingencies are more likely to include a “kick out” clause.

Kick out clauses are a right of first refusal. They allow the seller to keep searching for other buyers for the house. In the event that one of these other buyers makes an offer, then the seller must notify the first buyer. The first buyer then has some period of time to sell their house or else the seller is allowed to make the sale to the new buyer instead.

Factors to Consider When Using a Home Sale Contingency

Buyers should consider two things when deciding whether to ask for a home sale contingency: the effect it will have on the new home’s price and the other costs of purchasing a house. For the first point, home sale contingency clauses will likely drive the price of the new home up. The buyer is asking the seller to take the risk that the buyer’s old home will not sell, and the seller will likely want compensation for bearing that risk.

For the second point, buyers can still end up sinking other costs into the attempted purchase of the new home. They can end up paying for things like home inspections, appraisal fees, and the like, even before they have sold their old house. In the event that the buyer fails to sell their home, then they have wasted any money spent on such things.

If you are in the market for a new house, find an Illinois real estate attorney to help ensure that you receive strong, fair contracts. We serve towns all across northwest Chicago including Palatine, South Barrington, and Mount Prospect.

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.

A Beginner’s Guide to Applying for a Mortgage Loan

Web Admin - Thursday, February 20, 2014

illinois mortgage loan lawyerFor many first-time home buyers, the process of applying for a mortgage can seem complex. This guide will explain the basics of the process, such as the timeline for applying for a mortgage, the documents that applicants should procure and bring, and the credit score and down payment that applicants should expect.

The Mortgage Timeline

The mortgage process begins with a pre-approval application. The purpose of the preapproval process is to let the bank or lender look into the applicant’s finances, in order to make sure that they can afford a loan. This is when banks ask for most of the documentation. Often they want things such as:

- a list of addresses and landlords;
- a list of previous employers;
- pay-stubs from the previous one or two months, with a person’s year-to-date earnings included as well;
- the last two year’s W-2 forms;
- two months of bank statements for all accounts;
- a list of all debts not on the applicant’s credit report; and
- a list of all other real estate that the applicant already owns.

If the applicant has already found a house that they like, and their offer has been accepted, then the bank will also want the seller’s contact information and a copy of the contract. Being ready to provide these documents can help speed up the mortgage process.

Once a person goes through the pre-approval process and has made an offer on a house, the bank will order an appraisal on it. The appraiser will go through the house and determine the value, and then the bank will take their assessment into account when calculating how large a loan they can offer. Generally speaking, the bank will base their offer on either the appraisal value or the purchase price, depending on which is lower.

After the appraisal, the loan underwriter will look at all the documentation to make sure the loan is a good investment for the bank. From start to finish, the whole process usually takes about four to six weeks on the bank’s end, but timelines may vary, and asking the lender in the beginning may be a good idea.

Credit Scores and Down Payments

In addition to the array of documentation, lenders will also expect borrowers to have good credit scores and money available to make a down payment on the house. The rule of thumb for a conventional loan, according to U.S. News, is that a borrower would need a credit score of at least 650. Conventional loans also require, on average, a down payment of around 20 percent. Borrowers may have an alternative in the Fair Housing Act loan, which is a loan insured by the federal government. These loans offer a 3.5 percent down payment with a 580 credit score, and a 10 percent down payment with a 500 credit score.

If you are going through the process of buying a home, contact an Illinois real estate attorney today. Our team serves people in many northwest suburban areas including Inverness, Barrington and Long Grove.

About the Author: Attorney Jay Andrew is 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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