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ISBA Statehouse Review for the week of June 5, 2014

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. In this episode he covers Administrative review and attorney’s fees (Senate Bill 2829), Condominium Property Act (House Bill 4783), Presumptively void transfers (Senate Bill 1048), FOIA (House Bill 3796), The Residential Real Property Disclosure Act (Senate Bill 2597), Common Interest Community Association Act (Senate Bill 3057) and Service of process. (Senate Bill 3286). More information on each bill is available below the video.

Administrative review and attorney’s fees. Senate Bill 2829 (Link, D-Waukegan; Zalewski, D-Chicago) allows court to award attorney’s fees for the prevailing party in certain administrative-review actions. It applies only to the decision of a code-hearing officer that imposes a fine or penalty against the owner of a single-family or multi-family residential dwelling for a violation relating to the condition or use of that residential property. It is limited to municipalities with a population of 500,000 or less. The court may award the plaintiff all reasonable costs, including court costs and attorney’s fees, if the court finds that (1) the hearing officer’s decision was arbitrary and capricious; or (2) the defendant failed to file a record under Section 3-108 of the Code of Civil Procedure that is sufficient to allow the court to determine whether the hearing officer’s decision was arbitrary and capricious. The court may award the municipality the same damages if the court finds that the plaintiff’s action seeking administrative review is not reasonably well grounded in fact, is not warranted by existing law, or is not accompanied by a reasonable argument for the extension, modification, or reversal of existing law.

Condominium Property Act. House Bill 4783 (E. Chris Welch, D-Westchester; Steans, D-Chicago) makes the following declarations unenforceable as against public policy if the declarations affect the common elements or more than one unit and require any of the following before the board can take legal action on behalf of the association: (1) consent of a percentage of unit owners, (2) arbitration, (3) mediation before an action may be filed in court, or (4) a restriction or delay in the board’s ability to bring an action affecting the common elements or more than one unit. An otherwise unenforceable provision may be enforced after the election of the first-unit owner board of managers if it is approved by a unit-owner percentage vote of not less than 75% of the total in the aggregate of the undivided ownership of the common elements.

Presumptively void transfers. Senate Bill 1048 (Harmon, D-Oak Park; Welch, D-Westchester) creates a civil action in the Probate Act if a “presumptively void transfer” is challenged that applies to “caregivers.” If a “transfer instrument” transfers property in excess of  $20,0000 to a caregiver and is challenged, it creates a rebuttable presumption that this transfer is void. A caregiver is defined as anyone who has assumed responsibility for all or a portion of the care of another person who needs assistance with daily living activities. A caregiver doesn’t include a “family member” of the person receiving assistance. There are two exceptions to this rebuttable presumption. (1) If the transferee’s share under the transfer instrument is not greater than the share of the transferee was entitled to under the transferor’s testamentary plan in effect before the transferee became a caregiver. (2) If the transfer was not the product of fraud, duress, or undue influence as proved by clear and convincing evidence. If the caregiver attempts and fails to overcome the presumption, the caregiver must bear the cost of the proceedings, including reasonable attorney’s fees. The statute of limitation for challenging a presumptively void transfer is two years unless the Probate Act requires a shorter period. Senate Bill 1048 applies only transfer instruments executed after January 1, 2015.

FOIA. House Bill 3796 (Currie, D-Chicago; Hastings, D-Matteson) Defines “voluminous request.” Provides that a public body shall comply with specified notice requirements and deadlines in responding to a voluminous request. Provides that when a requester makes a voluminous request, the public body may charge specified fees for electronic data. Provides that, with specified exceptions, a public body is not required to copy and make available for public inspection a public record that is published on the public body's website. Makes corresponding changes.

The Residential Real Property Disclosure Act. Senate Bill 2597 (Bertino-Tarrant, D-Plainfield; Walsh, D-Joliet) amends the Residential Real Property Disclosure Act to add material defects in the window or doors to the list of disclosures required under the Act.

Common Interest Community Association Act. Senate Bill 3057 (Haine, D-Alton; Kosel, R-Mokena) allows an association to waive the current statutory requirement in its community instruments that a leasing unit owner must deliver a copy of a lease to the association.

Service of process. Senate Bill 3286 (Jacobs, D-Moline; Verschoore, D-Rock Island) amends the Code of Civil Procedure to require an employee of a “gated residential community” to grant entry into the community to an authorized process server who is attempting to serve process on a defendant or witness who resides within or is known to be within the community. This access would include common areas and common elements. The term “gated residential community” includes condominium associations, housing cooperatives, or private communities.

Posted on June 5, 2014 by Chris Bonjean
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