ELLIOTT & TRAINOR, P.C. -RALPH E. ELLIOTT ATTORNEYS AT LAW -BRIDGET C. TRAINOR 1005 W. Loras Drive -CHRISTINA M. WILLMAN Freeport, IL 61032 TEL. 815.233.1022
ELLIOTT & TRAINOR, P.C.                                    -RALPH E. ELLIOTT   ATTORNEYS AT LAW                                         -BRIDGET C. TRAINOR    1005 W. Loras Drive                                           -CHRISTINA M. WILLMAN                          Freeport, IL  61032                                                                                                                              TEL. 815.233.1022

LAW NOTES

SPRING 2021

 

“IS THIS MY LAND?” ADVERSE POSSESSION EXPLAINED

           

        Most of us are familiar with the adage, “possession is 9/10ths of the law.” When it comes to land ownership, possession of land is a very important factor. In some instances, one person may gain title (that is, legal right to) another person’s land by a doctrine called adverse possession.

 

      A person claiming right or title to land by adverse possession must prove that their possession of another person’s land was: 1) continuous; 2) hostile or adverse; 3) actual; 4) open, notorious, and exclusive; and 5) under claim of title inconsistent with that of the true owner. All these elements must be met for 20 years before title to land can be obtained by adverse possession. What does all this mean? Read on for an example.

 

      Sally and Joe are neighbors. Sally has always felt her actual property line extends a few feet into Joe’s yard, so in 1999 she erected a fence that encroached 10 feet beyond her property line onto Joe’s yard and has used the space for her flower bed and vegetable garden.

 

      Sally may argue that her possession is continuous if it lasts for the entire 20-year period required to claim title by adverse possession; that is, if her fence is maintained from 1999 to 2019 and no one else but Sally has possessed the fence in the meantime. Joe could defend this argument by presenting facts that showed Sally didn’t have continuous possession during the 20-year period or that Joe used the space.

 

      To prove that her possession is hostile or adverse, Sally may argue that she knew the land was not hers but used it nonetheless. Joe could counter by showing that, in fact, he told Sally she had permission to put up the fence and plant her garden at the outset.

 

      Sally could argue that her possession of the land satisfies the requirement of being “actual” because she has used and occupied it by planting a flower bed and garden along the fence line. Joe may be able to defend this point by showing that Sally only planted a garden for one season before letting it go to weeds and has otherwise failed to maintain the area.

 

      The element of “open, notorious, and exclusive” would require Sally to show that her use of Joe’s land has been obvious to Joe and anyone else. Joe might point out that, in fact, it is very difficult to determine the actual property line without a professional survey.

 

      Finally, Sally could argue that her possession is “under claim of title inconsistent with that of the true owner” by showing that she used the property as if she were the true owner of that land even though Joe has title to the land. Joe might defend that by showing that he has paid property taxes on his entire parcel and has continued to maintain the area for the whole period of Sally’s occupation.

 

        Only by meeting all five elements of adverse possession could Sally successfully claim title to the 10-foot strip of Joe’s land inside her fence line after the required 20-year period has elapsed. In the example above, it is easy to see that claims of adverse possession are highly dependent on the exact facts of each case. If a person notices that his or her land is being used by another without permission, they should act promptly, such as notifying the trespasser in writing of disapproval of use and filing a lawsuit for removal of a trespasser and any improvements before expiration of the 20-year claim period.

 

       All the nuances of an adverse possession claim are beyond the scope of this article, and the success of an adverse possession claim depends on consideration of the specific facts of each case by a judge or jury.  It is advisable to obtain the assistance of an attorney in pursuing or defending against a claim of adverse possession.

 

Is your will in a safe place?

      

     Think about where your Will is located. Is your Will stored in a location where a thief would have access to it? Is your Will in a place it could be damaged if there was a fire? Many people are unaware that when an original Will is missing at a person’s death, an Illinois court will presume that the person revoked his or her Will even if the family can find a copy of the Will.

 

       Under Illinois law, if the original Will is missing at a person’s death, then the court presumes that the person revoked his or her Will even if it was claimed stolen. In a recent Illinois Appellate Court case, the decedent (the person who died), Mr. Frakes, reported a burglary at his home in 2013, and his Will was one of the items he reported stolen. However, Mr. Frakes failed to redo his Will following the burglary, and he passed away in 2017. To probate an estate, the original Will needs to be filed with the court. Because Mr. Frakes’s original Will had been stolen and not remade, the executor of his estate needed to seek court approval to allow a copy of the Will to be filed and admitted to probate.

 

  A court will only accept a copy of a Will for probate in limited circumstances where the executor is able to provide sufficient evidence to show that the decedent did not revoke his Will.  The court in Mr. Frakes’s case determined that there was enough evidence to show that Mr. Frakes did not revoke his Will. The officer that responded to the burglary testified that Mr. Frakes had stated the robber had stolen his Will. In addition, Mr. Frakes’s long-time attorney testified that he had drafted his previous Wills and the Will that was stolen. Mr. Frakes’s attorney also stated that Mr. Frakes did not revoke or want to terminate his Will. That evidence was enough for the court to allow a copy of the Will to be admitted. However, the court also cautioned that evidence of a robbery or theft alone is not enough evidence to show that a decedent did not revoke or cancel his Will.

 

     An original Will should be stored in a location that is protected from theft or damage. If an original Will is stolen or involuntarily destroyed, it is highly recommended that the Will be redone promptly to avoid a lengthy court hearing and/or trial on whether a copy of the Will can be accepted by the probate court. Some attorneys store their clients’ original estate planning documents in a safe place for their clients. An attorney can also assist in drafting a new Will.

 

MY DOG BIT SOMEONE! AM I LIABLE?

     Owning a dog brings a lot of joy into a dog owner's life, but it also brings a risk of liability for the owner. One of the biggest liability risks for a dog owner is when the dog bites another person. Not only can a judge order the dog to be euthanized or taken away from the owner, but the owner may also be responsible for monetary damages to the individual the dog bit, including the person’s medical bills.

 

     Under Illinois law, a person who is bitten by a dog can sue the owner for negligence and for violation of the Animal Control Act. Under the doctrine of common negligence, the person who was bitten must prove that the owner of the dog knew or had reason to know that the dog would be dangerous. In a recent Illinois case, Dzierwa v. Ori, the dog bite victim argued that the owners should have known their dog was dangerous because the dog had recently fought with another dog at a park and the dog growled at people when they came to the door. However, the Illinois Appellate Court found that both of those behaviors failed to show that the dog was dangerous. Since the dog had never attacked a human before, the Court reasoned that the owners did not know the dog was dangerous to people and that they were not negligent.

 

     Under the Animal Control Act, a dog owner may be liable for injuries caused by a dog in their control to a person who is peaceably conducting themselves and is in a place where they are lawfully allowed to be. In Dzierwa v. Ori, the dog owners were out of town, and a house sitter was caring for their dog. The dog bit a person invited to the owner’s home by the house sitter without the owners’ permission. The Court stated that because the owners did not have control over the dog at the time, they were not liable under the Act.

 

     Liability for dog bite injuries under either the Animal Control Act or a negligence standard is highly fact-specific. The determination of liability will include analysis of factors such as the dog’s history of dangerous behavior, whether the dog was provoked or injured, and where the attack occurred. Upon a finding of liability, the dog owner may be responsible for damages to the injured person and may have to take certain actions to protect against future danger.

 

      An attorney can help determine a dog owner’s liability in the event of a bite or other injury. Please consult an attorney if you are in a similar situation.

 

WHICH BUSINESS STRUCTURE SHOULD I CHOOSE?

       

       Attorney Christina Willman gave a seminar on the advantages and disadvantages of a variety of business structures on February 25, 2021, for the Lunch & Learn Series with the Greater Freeport Partnership. The Lunch & Learn Series is a program put on by the Greater Freeport Partnership for its members to provide information from professionals on various business topics. A recording of the seminar is available on the GFP website.

 

     Common choices of business structures are sole proprietorships, partnerships, S-corporations, and limited liability companies.  Many factors must be considered to determine which business structure will be most advantageous to a particular business, including the number of owners involved, whether the owners are individuals or entities, whether the business will have employees, resources available to spend on start-up costs, the type of business, and the risks associated with the product or service provided.

     Sole proprietorships are an entity with one individual owner. They are the simplest to form and have minimal cost. However, there is no liability protection for the sole proprietor, which means creditors or individuals suing the sole proprietorship could access that individual’s personal assets, such as his or her house or his or her bank account. Partnerships are two or more persons or entities. It is highly recommended that a formal partnership agreement is drafted to dictate each partner’s role and governing provisions for the partnership. Like sole proprietorships, partnerships have unlimited personal liability unless the partnership is a limited liability partnership or a partner is a limited partner in a limited partnership. S-corporations and limited liability companies offer liability protection for the shareholders or members. The liability protection shields the shareholders’ or members’ personal assets in most situations, but there are circumstances in which a court will allow a creditor or person suing to hold a shareholder or member personally liable. To help avoid creditors or others from accessing a shareholder’s or member’s personal assets, the business owner should keep separate personal and business accounts, conduct annual meetings with written minutes each year, file required annual reports, and more.

 

     In addition to these general liability considerations, there are also different tax consequences and filing requirements for each type of business structure.  If you are interested in learning more about the advantages and disadvantages of a particular business structure, please visit the Greater Freeport Partnership’s website at https://greaterfreeport.com. Attorney Christina Willman’s recorded presentation may be found under the Small Business link under the Economic Development tab. If you have specific questions regarding your own business, please talk to an attorney who can answer your questions and give recommendations regarding which business structure might be appropriate.

 

OFFICE NEWS

       

Attorney Christina M. Willman Attends 2021 Leaders to Washington program

       

     Because of COVID-19, the Illinois Farm Bureau held its 2021 Leaders to Washington program meetings via Zoom to allow its members to safely discuss and advocate for policies and positions on issues affecting the agriculture industry. Attorney Christina M. Willman discussed current agriculture issues with Illinois 17th District Representative Cheri Bustos in a Zoom meeting hosted by the Illinois Farm Bureau on February 24, 2021, along with several other Illinois Farm Bureau members. Some of the topics discussed included high octane fuel, expanding trade, protecting advantageous tax provisions, and investing in infrastructure. Christina appreciates the opportunity to participate in Illinois Farm Bureau events so she can actively advocate for the agriculture industry. 

 

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