Recently, an Illinois appellate court held in favor of a village when the lender of a failed development attempted to foreclose on land dedicated to the village. Specifically, the various roads and outlots were dedicated in 2007 and 2009, but were not formally accepted by the village until 2013, a year after the lender filed its foreclosure proceeding. As a result, the lender brought suit claiming that there was no intent to dedicate the land to the village, and if there was an attempt it was revoked when the lender filed the foreclosure proceeding.
For a statutory dedication to be made under the Plat Act, two requirements must be satisfied:
- the property owner must file or record a plat which marks or notes portions of the premises as donated or granted to the public
- the public entity must accept the dedication.
Acceptance can be implied or express, with acceptance being possible even after a suit has been filed to establish ownership of the property. Further, a municipality does not have to act to “improve” streets or common areas so as to effectuate acceptance. If these dedicated areas remain unimproved, the presumption will remain as an implied acceptance.
Here, the court found that the use of language such as “hereby dedicated,” “heretofore dedicated,” “public,” and “the use and enjoyment of the [v]illage,” in the plats was enough to establish an intent to dedicate the property to the municipality.
Further, the court found that the filing of the foreclosure did not act as a revocation. Instead, only the completion of a foreclosure proceeding would act as a revocation. Therefore, the village could accept the dedication any time prior to the foreclosure being completed.
The case is a reminder that, when a foreclosure proceeding against a development is bought, the municipality needs to assert its right during the proceedings.
Authors: Michael J. Smoron, Jacob Caudill