Page 2 - John Hundley 2014

sold the property to plaintiff’s subrogor by special warranty deed one day after the tax purchaser applied
for a tax deed. The tax sale purchaser had filed a notice of lis pendens.

In the special warranty deed, the grantor covenanted “that it has not done or suffered to be done
anything whereby the said premises hereby granted are, or may be, in any manner encumbered or
charged,” excepting taxes not yet due and payable. PlaIntiff argued that by allowing the prior tax
encumbrance to remain on the property, grantor breached that covenant.

Noting that Black’s Law Dictionary defines a special warranty deed as “[a] deed in which the grantor
covenants to defend the title against only those claims and demands of the grantor and
those claiming by and under the grantor,” the court said a “special warranty is a limited
form of warranty and recovery is only available if the defect in title occurs because of
an act of the grantor” and the limited warranty “does not render the grantor liable for
defects in the title based on events that transpired when the property was in the hands
of a prior titleholder.” It said a special warranty against title or encumbrances “is
breached only if the grantor’s own conduct creates an encumbrance on the title.”

The court rejected an argument that deed’s use of the language “suffer” changed those rules.
Quoting Thompson on Real Property, it said that “‘suffered’ in this context doesn’t mean ‘tolerated.’ It
means ‘caused to be placed.’” Because it was not the grantor’s non-payment of taxes which caused the
tax lien to encumber the property, the limited warranty was not breached, the court said.

Foreign Judgment Lien Provision Brought Up-to-Date

735 ILCS 5/12-101 has been amended to bring it up-to-date with respect to current statutes on
registration of foreign judgment. Previously, the section had continued to reference 735 ILCS 5/12-601
through 5/12-617 even though those provisions had been repeated in 1991.

Effective January 1, the amended statute will provide that a foreign judgment registered or filed
pursuant to §§ 12-630 to 12-672 of 735 ILCS 5 will become a lien on the real estate of the judgment
debtor from (1) the time the affidavit required by § 12-653 is filed with a copy of the foreign judgment
showing its filing in a court of this state or (2) the time there is filed with the County Recorder a transcript,
certified copy or memorandum of a final judgment of an Illinois court entered on an action to enforce a
foreign judgment.

Strict Compliance With Property Tax Code § 22-5 Required

Strict compliance with the redemption right notice provisions of Property Tax Code § 22-5 (35 ILCS
200/22-5) is required in order to receive a tax deed, and a notice that states the last date for redemption is
a Saturday is invalid, a panel in the Appellate Court's First District has ruled. In re Application of County
Treasurer, 2013 IL App (1st) 130103, affirmed a trial court's denial of a tax deed even when no party
raised any objections to the notice served. The panel did not discuss the validity of deeds issued by
courts which did not realize the notice defect or which applied the “substantial compliance” approach
urged by the tax purchaser.
- John T. Hundley, jhundley@lotsharp.com, 618-242-0246
Brenda\SharpThinking\#108.pdf
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