                                No. 2--05--1209      Filed: 6-5-07
______________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re APPLICATION OF THE COUNTY              ) Appeal from the Circuit Court
TREASURER AND ex officio COUNTY              ) of Carroll County.
COLLECTOR, for Judgment and Order of         )
Sale Against Real Property Returned          ) Nos. 01--TX--9, 01--TX--10, 01--TX 13,
Delinquent for Nonpayment of General Taxes   ) 02--TX--26, 02--TX--29, 03--TX--10,
for the Year 1998 and Prior Years            ) 03--TX--11, 03--TX--12, 03--TX--13,
                                             ) 03--TX--14
                                             )
(AAM/US Bank LLC, Petitioner-Appellant,      ) Honorable
v. The Lake Carroll Association, Respondent- ) Val Gunnarsson,
Appellee).                                   ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE KAPALA1 delivered the opinion of the court:

       Petitioner, AAM/US Bank LLC , appeals from a November 8, 2005, order of the circuit court

of Carroll County denying its motion for summary judgment and granting that of respondent, the

Lake Carroll Association. For the reasons that follow, we affirm in part, reverse in part, and

remand.



          1
              Justice Kapala participated in this appeal and authored the opinion, but has since been

appointed as United States District Judge for the Northern District of Illinois, Western Division.

Our supreme court has held that the departure of an authoring judge prior to the filing date will

not affect the validity of a decision so long as the remaining two judges concur. Kinne v. Duncan,

383 Ill. 110, 113-14 (1943).
No. 2--05--1209


                                        I. BACKGROUND

       On August 5, 2002, petitioner filed a petition for tax deed for 16 parcels of real estate in

Carroll County. On February 11, 2003, the trial court granted the petition and issued petitioner an

"Order for Issuance of Tax Deed" (Tax Deed Order) for 15 of the 16 properties.2 Each order required

"that the Carroll County Clerk do forthwith make, execute, and deliver to said Petitioner upon

surrender to said County Clerk of the Certificate of Purchase delivered to the original purchaser, a

good and sufficient deed conveying to said Petitioner" the real estate described in the order.

       Following the trial court's February 11, 2003, orders, petitioner was issued tax deeds for the

properties on various dates, beginning on July 3, 2003. Petitioner obtained other deeds on July 25,

2003, October 1, 2003, October 14, 2003, and November 4, 2003. On the same dates these deeds

were issued, they were recorded.

       On September 10, 2003, petitioner filed a motion for declaratory judgment concerning

respondent's claims for homeowners' assessment fees on the 15 properties. In its motion, petitioner

requested a declaration that it would not be responsible for the homeowners' assessment fees until

it submitted each order to the county clerk, who would then issue a deed and record the deed with

the county recorder. In response, respondent argued that petitioner was obligated to pay assessment

fees on the properties as of February 11, 2003, when the Tax Deed Orders were entered.

       On October 29, 2003, the trial court denied petitioner's motion for declaratory judgment and

found that the properties were subject to homeowners' assessment fees that accrued since February



       2
           The tax sale certificate of purchase for the 16th property was redeemed prior to

the expiration of the period of redemption, and thus, the trial court dismissed petitioner's claim

against that property.

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11, 2003, the date of the Tax Deed Orders. However, on May 14, 2004, the trial court granted

petitioner's motion to reconsider and vacated its October 29, 2003, order. The trial court also granted

petitioner's motion for leave to file an amended motion for declaratory judgment as a writ of

assistance. In addition, the trial court granted petitioner's motion to consolidate the pending case

regarding the 15 properties discussed above (No. 02--TX--29) with petitioner's other pending tax

cases involving properties subject to respondent's assessment fees (No. 01--TX--9, No. 01--TX--10,

No. 01--TX--13, No. 02--TX--26, No. 03--TX--10, No. 03--TX--11, No. 03--TX--12, No. 03--TX--

13, No. 03--TX--14).3

       On June 15, 2004, petitioner filed its amended motion, entitled "Amended Application in

Writ of Assistance for Declaratory and Other Relief; and Claim for Unjust Enrichment." In its

amended application, petitioner sought a declaration that it was not liable for any of respondent's

assessment fees, past, present, or future, because the assessment obligations were not covenants

running with the land and the covenant of assessments contained in the "Declaration of Restrictive

Covenants, Lake Carroll" (Declaration) violated the rule against perpetuities. Petitioner also alleged

that even if respondent could properly charge assessment fees upon the properties at issue, petitioner

was not liable for the assessment fees that accrued between the date of the Tax Deed Orders and the

dates the deeds were recorded. Petitioner also requested that any and all assessments it paid to

respondent for the properties at issue be returned with prejudgment and postjudgment interest.



       3
           The trial court issued orders for issuance of tax deed in these cases on November 28, 2001

(No. 01--TX--9, No. 01--TX--10, No. 01--TX--13), February 11, 2003 (No. 02--TX--26), May 4,

2004 (No. 03--TX--10, No. 03--TX--11, No. 03--TX--12, No. 03--TX--13), and May 7, 2004 (No.

03--TX--14). No tax deeds for these properties are found in the record.

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No. 2--05--1209


        Petitioner attached the Declaration to its amended application. The Declaration contains the

covenants and restrictions that pertain to the land within the Lake Carroll Development. The

Declaration expressly authorizes respondent to "levy annual assessments against all Lots in the

Development." The Declaration states that any unpaid assessments may become a lien on the

property. The Declaration also provides that its terms are intended "to operate as covenants running

with the land for the benefit of each and all other such Lots and Parcels in the Development and their

respective owners, present and future." The Declaration is dated May 15, 1972, and states that it

shall exist "until January 1, 1995, after which the same shall be [automatically] extended for

successive periods of ten (10) years each."

        On July 11, 2005, respondent moved for summary judgment, arguing that there was no

genuine issue of material fact and that petitioner's amended application for declaratory judgment and

claim of unjust enrichment should be denied as a matter of law. On August 29, 2005, petitioner also

filed a motion for summary judgment. On November 8, 2005, the trial court granted respondent's

motion for summary judgment and denied petitioner's motion for summary judgment. The trial court

held that the homeowners' assessments were covenants running with the land and did not run afoul

of the rule against perpetuities. The trial court further held that once a person obtains an order for

the issuance of a tax deed, he has the right to obtain a tax deed and record it that day, and his liability

for the assessments relates back to the date of the order for the issuance of the tax deed. Petitioner

now appeals the order of the trial court. The trial court has stayed its judgment pending the mandate

of this court.

                                           II. DISCUSSION




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        Although petitioner separates its argument on appeal into five different issues, we believe

these issues condense into two basic contentions. First, petitioner contends that it is not liable for

any past, present, or future assessments on the properties, even following the recording of its tax

deeds, because (1) the tax deeds were purchased free and clear of any restrictions and assessments,

and any assessment fees sought by respondent were eliminated upon issuance of the tax deeds; (2)

respondent has waived or is estopped from collecting assessments, due to its failure to pursue its

right to those assessments at the tax deed proceedings; and (3) the covenant of assessments in the

Declaration is void under the rule against perpetuities. Second, petitioner contends that even if it is

liable for assessment fees, the trial court incorrectly chose the date of the Tax Deed Orders, rather

than the dates of recording of the tax deeds, as the date the assessments began to accrue. Based on

these two contentions, petitioner also contends that respondent owes petitioner prejudgment and

postjudgment interest and was unjustly enriched by petitioner's payment of the assessments. We will

address the second issue first, as it will help to illustrate when title to the properties vested in

petitioner. The nature and extent of the titles are relevant to the relative merits of the first issue.

        "Summary judgment is proper if, when viewed in the light most favorable to the nonmoving

party, the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a matter of law."

Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330 (2006). When parties file cross-motions for

summary judgment, they agree that no material issue of fact exists and only a question of law is

involved. Board of Education v. Cunningham, 346 Ill. App. 3d 1027, 1030 (2004). In such a case,

we review de novo the trial court's decision. Cunningham, 346 Ill. App. 3d at 1030.




                                                  -5-
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         As a preliminary matter, we must address respondent's motion to strike the "Nature of the

Case" section of petitioner's brief. Respondent argues that this section of petitioner's brief is not a

simple introductory paragraph but rather is composed of self-serving, conclusory, and argumentative

statements. Petitioner responds that respondent's motion to strike should be denied because it was

not filed separately pursuant to Supreme Court Rule 361 (210 Ill. 2d R. 361), and that, despite being

4½ pages long, the "Nature of the Case" section was not too long compared with the length of its

brief.

         Supreme Court Rule 341(h)(2) states that an appellant's brief should contain:

                "(2) An introductory paragraph stating (i) the nature of the action and of the

         judgment appealed from and whether the judgment is based upon the verdict of a jury, and

         (ii) whether any question is raised on the pleadings and, if so, the nature of the question.

                        Illustration:

                'This action was brought to recover damages occasioned by the alleged negligence

of

         the respondent in driving his automobile. The jury rendered a verdict for the plaintiff upon

         which the court entered the judgment from which this appeal is taken. No questions are

         raised on the pleadings.' " 210 Ill. 2d R. 341(h)(2).

         We agree with respondent that petitioner's 4½-page "Nature of the Case" section far exceeds

the concept of an introductory paragraph and violates the direction of Rule 341(h)(2). However,

" '[t]he striking of an appellate brief, in whole or in part, is a harsh sanction and is appropriate only

when the alleged violations of procedural rules interfere with or preclude review.' " In re Detention

of Powell, 217 Ill. 2d 123, 132 (2005), quoting Moomaw v. Mentor H/S, Inc., 313 Ill. App. 3d 1031,

                                                  -6-
No. 2--05--1209


1035 (2000). Although excessive, petitioner's "Nature of the Case" section does not interfere with

our review, and therefore, we decline to strike this portion of the brief. Consequently, we need not

consider petitioner's argument that respondent cannot raise a motion to strike in its appellee brief.

                        A. Commencement of Obligation to Pay Assessments

          Petitioner contends that the trial court erred in holding that the time frame for accrual of

assessments relates back to the date on which the trial court entered the Tax Deed Orders. Petitioner

contends that the assessments charged by respondent accrue beginning "no earlier than the date of

filing the tax deed." Respondent asserts that petitioner's obligation to pay the assessments arose

February 11, 2003, when the trial court issued the Tax Deed Orders.

          Initially, we note that both parties unnecessarily focus much of their arguments on whether

the recording of the deeds marks the beginning of the accrual of the assessments. Each tax deed in

the record was recorded on the same date the clerk issued the deed. Consequently, because each

deed was issued and recorded on the same day, any argument distinguishing the date of issuance

from the date of recording is unavailing. 4 Rather, the pivotal issue is whether respondent can collect


      4
          We note that the record contains the tax deeds issued and recorded only in case number 02--

TX--29. Although the Tax Deed Orders in the consolidated cases are in the record, neither the deeds

nor their dates of issuance or recording are in the record. Because the record does not show whether

the tax deeds issued in the consolidated cases were issued on a different date from that on which they

were recorded, we acknowledge that this distinction could affect those cases. However, it is the

responsibility of the appellant to provide a complete record to the court. Corral v. Mervis Industries,

Inc., 217 Ill. 2d 144, 156 (2005). Doubts that arise from the incompleteness of the record will be

resolved against the appellant. Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984). Accordingly, because

                                                  -7-
No. 2--05--1209


assessments accruing from the date of the Tax Deed Orders rather than the dates that the deeds were

issued and recorded. Because we conclude that respondent cannot collect assessments prior to the

dates of issuance of the tax deeds, we need not address the effect of the recording dates.

        "[T]he obligation to pay assessments is a covenant that runs with the land and is binding only

on title holders." Newport Condominium Ass'n v. Talman Home Federal Savings & Loan Ass'n of

Chicago, 188 Ill. App. 3d 1054, 1059 (1988); Illinois Ry. Museum, Inc. v. Siegel, 132 Ill. App. 2d

77, 82 (1971); see 35 ILCS 200/22-65 (West 2002). Thus, in order to determine when the

assessments began to accrue, we must first determine when petitioner gained title to the properties.

Two sections of the Property Tax Code (Code) (35 ILCS 200/1 et seq. (West 2002)) are particularly

helpful to this determination. Section 22--40 states that once the redemption period expires, the

property has not been redeemed, and the petitioner has complied with all the provisions of law

entitling him or her to a deed, "the court shall so find and shall enter an order directing the county

clerk on the production of the certificate of purchase and a certified copy of the order, to issue to the

purchaser or his or her assignee a tax deed." 35 ILCS 200/22--40 (West 2002). Section 22--65

provides that "[a] tax deed executed by the county clerk under the official seal of the county shall

be recorded in the same manner as other conveyances of property, and vests in the grantee, his or her



nothing in the record shows any apparent controversy as to whether the assessments begin to accrue

on the date of issuance or the date of recording, we will not render an opinion as to this issue. Barth

v. Reagan, 139 Ill. 2d 399, 419 (1990) ("Courts of review also ordinarily will not consider issues

where they are not essential to the disposition of the cause or where the result will not be affected

regardless of how the issues are decided").



                                                  -8-
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heirs and assigns, the title of the property therein described without further acknowledgment or

evidence of the conveyance." 35 ILCS 200/22--65 (West 2002).

        " 'In interpreting a statute, a court's primary goal is to ascertain the intent of the legislature.'

[Citations.] 'The best evidence of legislative intent is the language used in the statute itself, which

must be given its plain and ordinary meaning.' [Citation.] If the legislative intent can be discerned

from the statutory language, this [approach] must prevail, and no resort to other tools of statutory

construction is necessary." Mattis v. State Universities Retirement System, 212 Ill. 2d 58, 76 (2004);

People v. Burke, 362 Ill. App. 3d 99, 105 (2005). Where the language of the statute is clear, we may

not read into it exceptions that the legislature did not express and we will give it effect as written.

Elementary School District 159 v. Schiller, 221 Ill. 2d 130, 144 (2006).

        Section 22--40 specifically provides that the court's order allows the clerk to issue a tax deed

if, following the issuance of the court's order, the party presents the county clerk with the certificate

of purchase and a certified copy of the order. 35 ILCS 200/22--40 (West 2002). This language

suggests that the order itself does not amount to the issuance of the deed, but that steps must be taken

before the deed is issued. Moreover, section 22--40 also states that it is the county clerk that issues

the tax deed. 35 ILCS 200/22--40 (West 2002). Thus, while section 22--40 authorizes the court to

enter an order for issuance of a tax deed, it plainly states it is the county clerk that issues the tax

deed. See 35 ILCS 200/22--40 (West 2002). Moreover, section 22--65 specifically prescribes that

a tax deed executed by the clerk "vests in the grantee, his or her heirs and assigns, the title of the

property." 35 ILCS 200/22--65 (West 2002). Accordingly, the plain language of the above statutes

provides that title is acquired at the time the county clerk issues the tax deed, and not at the time the

order for issuance of the tax deed is entered.


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       The effect of the above statutes is also consistent with our supreme court's holding in Atkins

v. Hinman, 7 Ill. 437 (1845). In Atkins, the defendant challenged the title that the plaintiff received

at a sheriff's sale for taxes. Atkins, 7 Ill. at 437. Our supreme court held that three criteria must be

met to prove the validity of a title purchased at a tax sale: (1) a valid judgment against the land, (2)

a valid precept authorizing the sheriff to make the sale, and (3) proper conveyance of the land from

the sheriff. Atkins, 7 Ill. at 448. Thus, our supreme court recognized that a conveyance is an

essential part of vesting title, even when a court has authorized the sale. See Atkins, 7 Ill. at 448.

More recently, in Illinois Ry. Museum, Inc., 132 Ill. App. 2d at 82, the appellate court also noted that

"[a] certificate of sale does not pass title to the purchaser until the passing of the redemption period

and the issuance of a tax deed." (Emphasis added.)

       Therefore, in this case, petitioner obtained title to the properties on the days the tax deeds

were issued by the clerk, not the days the court entered the Tax Deed Orders. Accordingly, because

assessment fees can be collected only from titleholders, petitioner cannot be liable for fees accruing

on its properties before the dates the deeds were issued by the clerk.

       Furthermore, although the trial court pointed out that a tax deed purchaser may obtain a tax

deed on the day the order for issuance of the tax deed is entered, we do not believe that the mere

ability to acquire the tax deed endows the tax deed purchaser with the obligations and liabilities of

a titleholder. In this regard, this case is similar to one faced by the First District, in Newport, 188

Ill. App. 3d at 1054. In Newport, the defendant successfully bid for a certificate of purchase of a

foreclosed property. Newport, 188 Ill. App. 3d at 1056. The period of redemption expired six

months thereafter. Newport, 188 Ill. App. 3d at 1056. However, the defendant did not exchange his

certificate of purchase for the sheriff's deed until almost two years after the redemption period had


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No. 2--05--1209


ended. Newport, 188 Ill. App. 3d at 1056. Two months after the defendant received the deed to the

property, the condominium association filed a complaint against the defendant to foreclose on a lien

for the condominium assessments that had accrued on the property in the two years following the

expiration of the period of redemption. Newport, 188 Ill. App. 3d at 1056. The trial court entered

an order in favor of the condominium association, holding that the defendant had constructive title

of the property from the time the redemption period expired. Newport, 188 Ill. App. 3d at 1057.

       The appellate court reversed, holding that both the expiration of the redemption period and

the conveyance of the deed are necessary to pass title. Newport, 188 Ill. App. 3d at 1059. The

appellate court noted that the defendant had no legal obligation to exchange the certificate of

purchase for the tax deed. The court also held that the certificate of purchase did not convey title

and was merely evidence of the right to obtain title once the redemption period had expired.

Newport, 188 Ill. App. 3d at 1059. Thus, the court concluded that the defendant was liable only for

condominium assessments that accrued after he exchanged the certificate of purchase for the deed.

Newport, 188 Ill. App. 3d at 1059.

       Although the case at bar concerns a tax deed purchase and not a foreclosure sale, we find the

facts and analysis of Newport analogous to this case. Like the defendant in Newport, petitioner

possessed documents, the certificates of purchase and certified copies of the orders, which conveyed

the right to obtain title to the properties. See 35 ILCS 200/22--40 (West 2002). However, petitioner

was under no legal obligation to exchange those documents for the tax deeds. See 35 ILCS 200/22--

85 (West 2002). Moreover, petitioner did not obtain the titles to the properties until the clerk

conveyed the deeds to it. See 35 ILCS 200/22--65 (West 2002). Finally, although a court order

allowing for issuance of a tax deed was not present in Newport, the Tax Deed Orders indicated only


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that the trial court found that the requisite conditions for issuance of the deeds had been met. Each

Tax Deed Order, by requiring the clerk to issue a tax deed to the purchaser upon production of the

certificate of purchase, implied that the order itself conveyed neither deed nor title to the purchaser.

See 35 ILCS 200/22--40 (West 2002).

        Thus, consistent with Newport, we find that petitioner cannot be liable for any assessments

that accrued prior to the dates upon which the clerk issued petitioner deeds to the properties.

Therefore, we reject the trial court's finding that petitioner's liability for assessments relates back to

the date of the entry of the Tax Deed Orders. Accordingly, we reverse this portion of the trial court's

order granting summary judgment for respondent and denying it for petitioner.

                        B. Existence of Obligation to Pay Assessment Fees

        The following analysis relates to petitioner's first contention that it had no obligation to pay

any assessment fees, even after it acquired title through the issuance of the tax deeds. We reject all

of petitioner's arguments regarding this contention.

                                           1. Section 22--70

        Petitioner first argues that any right respondent had to assessment fees was eliminated by the

issuance of petitioner's tax deeds. Section 22--55 of the Code provides that a tax deed conveys

merchantable title and states that "[t]his Section shall be liberally construed so that tax deeds shall

convey merchantable title." 35 ILCS 200/22--55 (West 2002). In light of the requirement of

merchantable title, a tax deed issued pursuant to a judicial process grants to the purchaser a new and

independent title, free and clear from previous titles and claims, and any prior lien on a property

becomes void upon issuance of a tax deed. Crawford v. Love, 243 Ill. App. 3d 977, 980 (1993);



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Lincoln Park Federal Savings & Loan Ass'n v. DRG, Inc., 175 Ill. App. 3d 176, 178 (1988); see also

In re Application of Olmstead, 269 Ill. App. 3d 821, 823 (1995); Pappmeier v. Green Tree

Acceptance, Inc., 193 Ill. App. 3d 824, 826 (1990). However, section 22--70 of the Code (35 ILCS

200/22--70 (West 2002)) identifies several preexisting interests that are not eliminated by tax deed.

       Section 22--70 states:

               "A tax deed issued with respect to any property sold under this Code shall not

       extinguish or affect any conservation right, easement, covenant running with the land or

       right-of-way for water, sewer, electricity, gas, telephone or other public service use which

       was created, on or over that real property before the time that property was sold under this

       Code and which is evidenced either by a recorded instrument or by wires, poles, pipes,

       equipment or other public service facilities. When the property described in a tax deed issued

       under this Code is a dominant or a servient tenement with respect to any private easement

       or easements, created in good faith expressly or by operation of law for the benefit of a

       dominant tenement or tenements, with respect to the easement or easements the tax deed

       shall have the same effect as a deed of conveyance made by the owner of the property to the

       tax deed grantee, just prior to the issuance of the deed." 35 ILCS 200/22--70 (West 2002).

       Petitioner makes two arguments as to why section 22--70 does not apply to the assessment

fees in this case. First, petitioner argues that the assessment fees at issue are not covenants running

with the land, and second, petitioner argues that section 22--70 applies only to public service uses.

                                a. Covenant Running with the Land

       Petitioner argues that because homeowners' association assessments are not specifically listed

in section 22--70, these assessments are eliminated upon issuance of a tax deed. However, although

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the plain language of section 22--70 does not specifically refer to the obligation to pay homeowners'

assessment fees, section 22--70 does protect covenants running with the land. 35 ILCS 200/22--70

(West 2002). Thus, if the assessment fees at issue are covenants running with the land under section

22--70, as respondent asserts, the plain meaning of section 22--70 precludes them from elimination

by tax deed. Petitioner argues that the assessment fees do not run with the land because they do not

touch and concern the land, and there is no privity of ownership between a prior owner of a property

and the purchaser of a tax deed. Petitioner also distinguishes negative and positive covenants and

asserts that section 22--70 does not protect positive covenants that run with the land.

       In Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182 (1983), our supreme court

recognized three characteristics of covenants running with the land that were first outlined by New

York courts. Streams Sports Club, 99 Ill. 2d at 188. In order for a covenant to run with the land,

New York courts require that (1) the parties intend the covenant to run with the land, (2) the

covenant touches and concerns the land, and (3) there was privity of estate between the party

claiming the benefit and the party resting under the burden of the covenant. Streams Sports Club,

99 Ill. 2d at 188, citing Neponsit Property Owners' Ass'n v. Emigrant Industrial Savings Bank, 278

N.Y. 248, 255, 15 N.E.2d 793, 795 (1938). Although our supreme court never expressly adopted

this test, it applied these three factors to determine that association fees used to support a gym next

to a condominium complex ran with the land. Streams Sports Club, 99 Ill. 2d at 188-90. Several

appellate court cases have since adopted this three-part test. United States Fidelity & Guaranty Co.

v. Old Orchard Plaza Ltd. Partnership, 284 Ill. App. 3d 765, 777 (1996); Drayson v. Wolff, 277 Ill.

App. 3d 975, 983 (1996); In re Estate of Wallis, 276 Ill. App. 3d 1053, 1056 (1995); Derby

Meadows Utility Co. v. Inter-Continental Real Estate, 202 Ill. App. 3d 345, 362 (1990); Nassau


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Terrace Condominium Ass'n v. Silverstein, 182 Ill. App. 3d 221, 224 (1989); St. Paul Federal Bank

for Savings v. Wesby, 149 Ill. App. 3d 1059, 1063 (1986). Accordingly, we examine whether

respondent's covenant of assessments meets this test.

       First, we note that both parties concede that the properties at issue are subject to the

Declaration. Petitioner further concedes that pursuant to the Declaration, the original grantor and

grantee of the properties intended the covenant of assessments to run with the land. Section VII of

the Declaration states that respondent may levy annual assessments against all lots in the

development. The Declaration also states that its provisions "are intended to *** operate as

covenants running with the land for the benefit of each and all other such Lots and Parcels in the

Development and their respective owners, present and future." Therefore, the parties to the

Declaration intended specific provisions, including the possibility of annual assessments, to run with

the land. Thus, the first factor of a covenant running with the land is met in this case.

       As to the factor of touch and concern, petitioner argues that the covenant of assessments

does not touch and concern the land because "old covenants of the prior chain of title cannot 'touch

and concern' a new title which is 'independent, free and clear etc.' " Similarly, in the trial court,

petitioner alleged that the covenant of assessments was not "in touch and concern with the

[petitioner's] *** Tax Deeds."

       Petitioner's argument is misguided. "A covenant touches and concerns the land if it 'affects

the use, value and enjoyment *** of the property.' " United States Fidelity & Guaranty Co., 284 Ill.

App. 3d at 777, quoting Nassau Terrace Condominium Ass'n, 182 Ill. App. 3d at 225. Thus, this

requirement concerns the covenant's relationship to the land, not whether the covenant touches and

concerns the title of a successor in interest. See Streams Sports Club, 99 Ill. 2d at 188. In Streams


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Sports Club, our supreme court held that an agreement to pay fees for a recreational facility, which

was adjacent to a condominium complex and part of a common building plan, touched and

concerned the land. Streams Sports Club, 99 Ill. 2d at 189. Similarly, in Wesby, the First District

held that where an agreed assessment fee is, in part, for repair of the common areas, it also touches

and concerns the land. Wesby, 149 Ill. App. 3d at 1063.

        In this case, the Declaration states that "pursuant to the powers granted to it in its Articles and

By-Laws, the [Lake Carroll] Association is hereby expressly authorized and empowered to levy

annual assessments against all Lots in the Development." The Declaration does not specify for what

purpose the assessments could or would be used. In addition, although the Declaration refers to

respondent's articles and bylaws, these are not part of the record in this case. Furthermore, we find

no evidence in the record as to the purpose of the assessment fees. As a result, it is difficult to

determine whether the original covenant of assessments was one that did not touch and concern the

land.

        However, "[t]he burden of proof in a civil proceeding generally rests on the party seeking

relief and is always borne by the plaintiff in an action for declaratory judgment." Muhammad v.

Muhammad-Rahmah, 363 Ill. App. 3d 407, 414 (2006). Petitioner failed to demonstrate in any way

that the assessments referred to in the Declaration are not covenants that affect the use, value, or

enjoyment of the land. Instead, petitioner alleged and argued that the covenant did not touch or

concern the successor's title. Accordingly, we cannot find the trial court erred in rejecting petitioner's

contentions.

        Finally, in regard to the factor of privity, petitioner argues there is no privity of estate

between petitioner and the prior property owner because petitioner took the titles pursuant to a


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statutory procedure and not a grant in privity of estate and because a tax deed creates a new chain

of title separate from a previous owner of a property.

       According to Streams Sports Club, in order for a covenant to run with the land, privity of

estate must exist between the party claiming the benefit and the party resting under the burden of the

covenant. Streams Sports Club, 99 Ill. 2d at 188. "[P]rivity exists when the latter user has succeeded

to the interest of the earlier user by inter vivos conveyance, by descent, by devise, or by involuntary

conveyance." Roller v. Logan Landfill, Inc., 16 Ill. App. 3d 1046, 1053 (1974). Petitioner does not

contest the privity between the original grantor of the property and the property owners in the

association.   Nor does petitioner challenge respondent's privity of estate with the original

beneficiaries of the covenant. Rather, petitioner argues that its tax deeds severed the line of privity

of estate between the original owners of the burdened properties and petitioner and that, therefore,

the covenant of assessments cannot run with petitioner's lands.

       However, we need not decide this issue, because, even if there is no privity of estate between

a tax deed purchaser and the previous owner of the land, section 22--70 requires that any preexisting

covenant running with the land continues to run after the tax deed is issued. "The primary objective

of this court when construing the meaning of a statute is to ascertain and give effect to the intent of

the legislature." DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). "Further, when undertaking the

interpretation of a statute, we must presume that when the legislature enacted a law, it did not intend

to produce absurd, inconvenient or unjust results." Vine Street Clinic v. HealthLink, Inc., 222 Ill.

2d 276, 282 (2006).

       Section 22--70 specifically enumerates covenants running with the land as interests that are

not extinguished by tax deed. 35 ILCS 200/22--70 (West 2002). Accordingly, even if under the


                                                 -17-
No. 2--05--1209


common law a lack of privity would prohibit a preexisting covenant from running with the land after

the issuance of a tax deed, the plain language of section 22--70 allows any covenant that would

otherwise run with the land and that exists at the time of the issuance of the tax deed to continue to

run with the land. Moreover, under petitioner's logic, if section 22--70 preserved only covenants

that would naturally run with the land following a tax deed purchase, and there was no privity of

estate between any previous property owner and the tax deed purchaser, no covenant running with

the land would exist following the issuance of the tax deed. This would conflict with the plain

meaning of the statute and lead to absurd results. Therefore, we reject petitioner's argument.

        Because section 22--70 specifically refers to preexisting interests that can be "extinguished"

following issuance of a tax deed (35 ILCS 200/22--70 (West 2002)), whether a covenant is one

"running with the land" pursuant to section 22--70 is determined by the nature of the covenant

existing prior to the issuance of the tax deed. In this case, petitioner does not dispute that the

covenant of assessments had run with the land and that the previous property owner was in privity

with the original owner of the burdened estate. Therefore, because the covenant of assessments was

a covenant running with the land and existed prior to tax sale, pursuant to section 22--70, it was not

extinguished by the issuance of the tax deeds.

       Petitioner also suggests that section 22--70 protects only negative covenants and not positive

covenants to pay assessments, because negative covenants can run absent privity of estate. First, this

argument fails because the plain language of section 22--70 does not distinguish between positive

and negative covenants. Rather, section 22--70 plainly states that a "tax deed issued with respect

to any property sold under this Code shall not extinguish or affect any conservation right, easement,

covenant running with the land or right-of-way." (Emphasis added.) 35 ILCS 200/22--70 (West


                                                 -18-
No. 2--05--1209


2002). Moreover, Illinois courts have consistently held that covenants made between sellers and

buyers of land run with the land when the covenants concern the land or the enjoyment of it. Fitch

v. Johnson, 104 Ill. 111, 121 (1882); La Salle National Trust, N.A. v. Village of Westmont, 264 Ill.

App. 3d 43, 73 (1994). Petitioner cites no Illinois case that makes a distinction between positive and

negative covenants running with the land. In addition, in regard to the privity requirement, Streams

Sports Club makes no distinction between positive and negative covenants in the rule it sets forth.

See Streams Sports Club, 99 Ill. 2d at 188.

        In light of this history, we find no reason to believe that the legislature intended to exclude

covenants to pay assessment fees from the definition of covenants running with the land. Our

supreme court has found that covenants to pay assessment fees are covenants running with the land.

Streams Sports Club., 99 Ill. 2d at 188. "Where the language of the statute is clear, we may not read

into it exceptions that the legislature did not express, and we will give it effect as written." Schiller,

221 Ill. 2d at 144. Therefore, we will not limit the application of section 22--70 to negative

covenants, and we reject petitioner's argument that the covenant of assessments is not a covenant

running with the land.

                                         b. Public Service Use

        Petitioner next asserts that the phrase "for water, sewer, electricity, gas, telephone or other

public service use" in section 22--70 (35 ILCS 200/22--70 (West 2002)) limits the types of covenants

running with the land that the section protects, and petitioner concludes that, because the assessment

fees at issue are not for water, sewer, electricity, gas, telephone, or other public service use, they are

not protected by section 22--70. In contrast, respondent argues that the phrase "for water, sewer,

electricity, gas, telephone or other public service use" applies only to the types of "right-of-ways"


                                                  -19-
No. 2--05--1209


protected by section 22--70, and not to covenants running with the land. 35 ILCS 200/22--70 (West

2002).

         Again, the best evidence of legislative intent is the language used in the statute itself, which

must be given its plain and ordinary meaning. Mattis, 212 Ill. 2d at 76. The application of the

phrase "for water, sewer, electricity, gas, telephone or other public service use" was recently

considered by the Fifth District in SI Securities v. Bank of Edwardsville, 362 Ill. App. 3d 925 (2005).

In that case, the plaintiff obtained a tax deed to a property in a subdivision and sought an order from

the court declaring that restrictions governing the subdivision did not apply to the property. SI

Securities, 362 Ill. App. 3d at 926. By their express terms, the restrictions were imposed upon the

land, bound successive property owners, and automatically extended to future additions in the

subdivision. SI Securities, 362 Ill. App. 3d at 926. The plaintiff argued that section 22--70

protected only utility and public use covenants from extinction because the phrase "water, sewer,

electricity, gas, telephone or other public service use" modified the phrase "covenant running with

the land." Because the covenants listed in the amended complaint were not utility or public use

covenants, the plaintiff argued, they were extinguished when the tax deed was issued. SI Securities,

362 Ill. App. 3d at 928.        The SI Securities court rejected the plaintiff's argument and reasoned

that section 22--70 "clearly says that a tax deed shall not extinguish or affect any covenant running

with the land" and that "[t]he phrase 'water, sewer, electricity, gas, telephone[,] or other public

service use' is set apart from the other property rights and modifies only the term 'right-of-way,'

which follows the word 'or,' as opposed to 'and.' " (Emphasis in original.) SI Securities, 362 Ill.

App. 3d at 929-30. The court further reasoned that both the title of section 22--70, "Easements and

covenants running with the land," and its language did not impart a restrictive application of the


                                                  -20-
No. 2--05--1209


statute toward easements and covenants running with the land. SI Securities, 362 Ill. App. 3d at

930. The court pointed out that a covenant or right-of-way can be a type of an easement, and a

conservation right can be an easement or covenant, and that this redundant language within the

statute indicates the legislature's intent to broaden the range of easements and covenants running with

the land that survive a tax deed. SI Securities, 362 Ill. App. 3d at 930. Therefore, SI Securities held,

the plain language of section 22--70 protected any covenant running with the land from extinction

by tax deed. SI Securities, 362 Ill. App. 3d at 929. The SI Securities court also outlined several

policy reasons that supported its interpretation. SI Securities, 362 Ill. App. 3d at 930-31.

       We agree with the Fifth District's conclusion that section 22--70 applies to any covenant

running with the land. The language of section 22--70 at issue is: "A tax deed issued with respect

to any property sold under this Code shall not extinguish or affect any conservation right, easement,

covenant running with the land or right-of-way for water, sewer, electricity, gas, telephone or other

public service use ***." 35 ILCS 200/22--70 (West 2002). The word "or" is disjunctive. Schiller,

221 Ill. 2d at 145. Disjunctive connotes two different alternatives. Schiller, 221 Ill. 2d at 145. Thus,

"[a]s used in its ordinary sense, the word 'or' marks an alternative indicating the various parts of the

sentence which it connects are to be taken separately." Schiller, 221 Ill. 2d at 145. As a result, the

word "or" preceding the phrase "right-of-way" indicates that the words prior to "or" are to be taken

separately from the words that follow. See Schiller, 221 Ill. 2d at 145. Accordingly, the plain

language of section 22--70 dictates that the words "covenants running with the land" are not

modified by the phrase "for water, sewer, electricity, gas, telephone or other public service use." As

a result, when the language of section 22--70 is given its plain and ordinary meaning, it reflects the

intent of the legislature to protect any covenant running with the land from extinction by tax deed,


                                                 -21-
No. 2--05--1209


and not only those for water, sewer, electricity, gas, telephone, or other public service use.

Therefore, we refuse to read into the statute further restrictions on covenants running with the land,

and we reject petitioner's argument that the homeowners' assessments sought by respondent are not

subject to section 22--70 because they do not relate to such public uses.

       We also reject petitioner's argument that SI Securities conflicts with the Fifth District's

decision in Killion v. Meeks, 333 Ill. App. 3d 1188 (2002), or the First District's decision in

Crawford, 243 Ill. App. 3d 977. Both Killion and Crawford explored whether a claim of adverse

possession was extinguished by the issuance of a tax deed. Killion, 333 Ill. App. 3d at 1193;

Crawford, 243 Ill. App. 3d at 978. Both courts found that because the legislature had specifically

enumerated interests that were not extinguished by tax deed, such as easements, covenants running

with the land, and rights-of-way for water, sewer, electricity, gas, telephone, or other public service

uses, other interests not mentioned, such as interests gained by adverse possession, were not

protected. Killion, 333 Ill. App. 3d at 1193; Crawford, 243 Ill. App. 3d at 978.

       Petitioner implies that, contrary to Killion and Crawford, SI Securities extended the interests

surviving tax deed to include those not enumerated by statute. This is simply not the case. Both SI

Securities and the case at bar concern covenants running with the land, which are enumerated in

section 22--70 of the Code. Although the statute does not specifically identify each type of covenant

running with the land that is protected, our supreme court has recognized that both restrictions on

the use of land (Wise v. Wouters, 288 Ill. 29, 32-33 (1919)) and affirmative obligations to pay

assessment fees (Streams Sports Club, 99 Ill. 2d at 190-91) can be covenants running with the land,

provided that they meet certain criteria. Therefore, Killion and Crawford are inapposite to both this




                                                 -22-
No. 2--05--1209


case and SI Securities, as they concern interests not specifically addressed by section 22--70. See

Killion, 333 Ill. App. 3d at 1193; Crawford, 243 Ill. App. 3d at 978

       Furthermore, we reject petitioner's argument that the policy reasons articulated by the SI

Securities court do not apply in this case. First, because the language of the statute is unambiguous,

we need not resort to a discussion of policy to determine the legislature's intent. People ex rel. Ryan

v. Agpro, Inc., 214 Ill. 2d 222, 234 (2005). Second, we see no reason why the policy reasons set

forth in SI Securities would not apply to covenants to pay assessment fees. The SI Securities court

stated that public policy favored the preservation of restrictive covenants because it maintains the

value of all properties in a development and does not render title less merchantable, and because it

enables property owners to rely on recorded easements and covenants to protect the values of their

investments. SI Securities, 362 Ill. App. 3d at 930-31.

       Although covenants to pay assessment fees require property owners' affirmative actions, they

also enable property owners to maintain the values of their properties by insuring the use and

enjoyment of their properties through the continued maintenance of commonly used areas and

thoroughfares. See Wesby, 149 Ill. App. 3d at 1064; Lakeland Property Owners Ass'n v. Larson, 121

Ill. App. 3d 805, 812 (1984). In the same way, preservation of a covenant to pay fees for common

expenses allows owners to insure that the values of their investments are protected. Therefore, we

do not find petitioner's attempts to refute the policy reasons articulated by SI Securities relevant or

persuasive.

       Because we reject both petitioner's argument that the covenant of assessments is not a

covenant running with the land and its argument that section 22--70 applies only to public uses, we

find that the trial court did not err when it determined that section 22--70 applied in this case and,


                                                 -23-
No. 2--05--1209


as a result, that the covenant of assessments was not extinguished by the issuance of petitioner's tax

deeds.

                                       2. Waiver and Estoppel

         Petitioner next argues that respondent has waived or is estopped from seeking assessment

fees because respondent was made a party to the tax deed proceedings and failed to assert any

continuing interest prior to the issuance of the tax deeds. Respondent responds that the Declaration,

containing the covenant of assessments, was recorded and, thus, petitioner had notice of the

assessments at the time the tax deeds were issued, and there was no need for respondent to take any

positive action to assert its claim.

         "Waiver is the voluntary and intentional relinquishment of a known right." In re Nitz, 317

Ill. App. 3d 119, 130 (2000). Estoppel refers to the effect of a party's voluntary conduct that

precludes it from asserting rights that might otherwise have existed against another person who has

detrimentally relied upon such conduct. Lake County Grading Co. of Libertyville, Inc. v. Advance

Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 462-63 (1995). We will first discuss waiver.

Waiver can arise either expressly or implicitly by conduct inconsistent with an intent to enforce a

right. Nitz, 317 Ill. App. 3d at 130. An implied waiver can occur in either of two situations: " '(1)

an unexpressed intention to waive can be clearly inferred from the circumstances; or (2) the conduct

of one party has misled the other party into a reasonable belief that a waiver has occurred.' "

Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 399-400 (2004), quoting Batterman v.

Consumers Illinois Water Co., 261 Ill. App. 3d 319, 321 (1994). "The party claiming an implied

waiver has the burden of proving a clear, unequivocal, and decisive act of its opponent manifesting

an intention to waive its rights." Nitz, 317 Ill. App. 3d at 130.


                                                -24-
No. 2--05--1209


        Section 22--70 of the Code states that a tax deed issued under the Code does not infringe on

or affect any covenants running with the land. 35 ILCS 200/22--70 (West 2002). Thus, as discussed

above, the tax deed proceedings in this case would not have infringed on any covenants running with

the land. Respondent's failure to assert at the tax deed proceedings its right to future assessment fees

does not signify an unequivocal, decisive waiver of its future assessment fees, because the tax deed

proceedings would not have eliminated or contravened any covenants running with the land.

Furthermore, petitioner does not argue that it was misled by respondent's failure to raise the issue

of assessments at the tax deed proceedings.

       For similar reasons, respondent is not estopped from seeking its assessment fees. Equitable

estoppel is defined as "the effect of the person's conduct whereby the person is barred from asserting

rights that might otherwise have existed against the other party who, in good faith, relied upon such

conduct and has been thereby led to change his or her position for the worse." Geddes v. Mill Creek

Country Club, Inc., 196 Ill. 2d 302, 313 (2001). " 'Estoppel may arise from silence as well as words.

It may arise where there is a duty to speak and the party on whom the duty rests has an opportunity

to speak, and, knowing the circumstances, keeps silent. [Citations.] It is the duty of a person having

a right, and seeing another about to commit an act infringing upon it, to assert his right. He cannot

by his silence induce or encourage the commission of the act and then be heard to complain.' "

Geddes, 196 Ill. 2d at 314, quoting Bondy v. Samuels, 333 Ill. 535, 546 (1929). "The test used to

evaluate an estoppel claim is whether, considering all the circumstances of the specific case,

conscience and honest dealing require that a party be estopped." Hubble v. O'Connor, 291 Ill. App.

3d 974, 983-84 (1997).




                                                 -25-
No. 2--05--1209


        Petitioner's argument that respondent is estopped from asserting the assessments fails for two

reasons. First, the doctrine of estoppel requires the moving party to show that it changed its conduct

in reliance on the other party's actions. Geddes, 196 Ill. 2d at 313. To claim reliance on another's

silence, the party must have acted without knowledge of the truth of the matter relied upon. Wilson

v. Illinois Benedictine College, 112 Ill. App. 3d 932, 939 (1983). In this case, petitioner does not

contest that respondent recorded its covenant of assessments as to the properties as issue. Therefore,

petitioner was on notice that the properties it obtained by tax deed were subject to future assessment

fees, and it purchased the properties anyway. As a result, petitioner cannot show that it relied on

respondent's silence regarding the assessments.

        Second, in order for a party's silence to justify equitable estoppel, the party must have a duty

to speak and an opportunity to speak. Geddes, 196 Ill. 2d at 314. A duty to speak arises when a

party knowingly watches another infringe upon its rights. See Geddes, 196 Ill. 2d at 314. In this

case, respondent had no reason to believe that petitioner's tax deeds infringed upon any right

respondent had to future assessments because section 22--70 specifically preserved this right.

Therefore, respondent did not have a duty to raise its right to assessment fees at the tax deed

proceedings. Consequently, respondent's silence did not constitute grounds for estoppel.

        Finally, petitioner cites People v. Cottine, 20 Ill. App. 2d 562 (1959), and section 22--75 of

the Code (35 ILCS 200/22--75 (West 2002)) for the proposition that respondent is estopped from

asserting its assessments after the issuance of the tax deeds. However, petitioner's reliance on these

authorities is misplaced. Both Cottine and the statute concern estopping parties from attacking a

tax deed. Cottine, 20 Ill. App. 2d at 572; 35 ILCS 200/22--75 (West 2002). In this case, respondent

does not object to petitioner's tax title but rather contends that its assessments fall under section 22--


                                                  -26-
No. 2--05--1209


70 of the Code and survive issuance of the tax deeds. Respondent does not in any way contest the

tax deed proceedings or the validity of the tax deeds themselves. Consequently, Cottine and section

22--75 are inapposite to this case.

        Therefore, we reject petitioner's arguments that respondent waived or is estopped from

collecting assessment fees.

                                   3. The Rule Against Perpetuities

        Petitioner argues that even if respondent's right to assessment fees survives the issuance of

the tax deeds, petitioner is not obligated to pay assessment fees because the covenant of assessments

is void under the rule against perpetuities. Petitioner argues that the covenant of assessments creates

a future interest in respondent to place a lien on a property and to foreclose on the property.

Petitioner points out that the duration of the Declaration is 22 years and, thus, asserts that a future

interest contemplated by the Declaration could vest after 21 years.

        In 1969, the Illinois legislature passed an act known as the Statute Concerning Perpetuities

(Act). Ill. Rev. Stat. 1971, ch. 30, par. 191 (now 765 ILCS 305/2 (West 2004)). Section 2 of the Act

provides that the common-law rule against perpetuities shall remain in full force and effect except

as modified by the Act. Ill. Rev. Stat. 1971, ch. 30, par. 192 (now 765 ILCS 305/2 (West 2004)).

The common-law rule against perpetuities operates to prevent remote vesting of contingent interests

in property. Marcy v. Markiewicz, 233 Ill. App. 3d 801, 810 (1992). According to the rule against

perpetuities, no interest in property is valid unless it vests within 21 years of a life or lives in being

at the time of the creation of the interest. Marcy, 233 Ill. App. 3d at 810. When lives in being form

no part of the postponed period, the limit within which an estate must vest is 21 years. Smith v.

Renne, 382 Ill. 26, 29 (1943). "It is also the rule that if by any possibility the estate will not vest

                                                  -27-
No. 2--05--1209


within the time required by the rule the devise is void." Renne, 382 Ill. at 29. However, "[n]o

interest which is vested at the time of the creation of the interest is subject to the [r]ule." Marcy, 233

Ill. App. 3d at 810.

        In this case, the Declaration states:

                "A. General. Pursuant to the powers granted to it in its Articles and By-Laws, the

        Association is hereby expressly authorized and empowered to levy annual assessments

        against all Lots in the Development. Provided, however, except as may be otherwise

        indicated, no assessment shall be levied against Lots owned by Declarant.

                 B. Collection and Lien. The amount of the assessment levied by the Association

                shall

        be paid to it on or before the date or dates fixed by resolution of the Board. If not so paid,

        the amount of such assessment, plus any other charges thereon, including interest at the

        maximum limit provided by law per annum from date of delinquency and costs of collection,

        including attorney's fees, if any, shall constitute and become a lien on the Lot so assessed

        when the Board causes to be recorded in the office of the appropriate County Recorder of

        Deeds, a notice of assessment which shall state the amount of such assessment and such

        other charges and a description of Lot which has been assessed.

                ***

                D. Enforcement. The lien provided for herein may be foreclosed by suit by the

        Association in like manner as a mortgage and, in such event, the Association may be a bidder




                                                  -28-
No. 2--05--1209


       at the foreclosure sale. The Association may also pursue any other remedy against any owner

       owing money to it which is available by law or equity for the collection of debt."

The Declaration also provides that its provisions exist and bind all parties "until January 1, 1995,

after which time the same shall be [automatically] extended for successive periods of ten (10) years

each." The Declaration was executed May 25, 1972. Therefore, the length of the initial period of

the Declaration is approximately 22 years and 7 months. Thus, because the Declaration lasts more

than 21 years, and because the Declaration allows a lien to arise on the property only when the

assessments are not paid, there is an interest that could arise after 21 years.

       Petitioner argues that because the lien could occur after 21 years, the entire covenant of

assessments is void. The premise of petitioner's argument is that respondent's right to impose a lien

and a property owner's obligation to pay assessment fees are inseparable parts of the covenant of

assessments, such that if the lien is void, the assessment fees are void as well. This premise is

flawed. The covenant of assessments is not the lien itself. Wesby, 149 Ill. App. 3d at 1067-68.

Rather, the covenant of assessments began at the time of the Declaration, while the lien on a property

does not arise until the debt to respondent accrues. See Wesby, 149 Ill. App. 3d at 1067-68.

Moreover, liens are created by agreement of the parties or by a fixed statutory rule (La Salle National

Trust, 264 Ill. App. 3d at 75); they are not an automatic result of the nonpayment of assessment fees.

Thus, in order for a lien to exist, it must be created by agreement or statute in addition to a covenant

to pay assessment fees. Consequently, the right to collect assessment fees and the right to a lien on

the property upon nonpayment are two separate interests that must be evaluated independently.

       In regard to the covenant of assessments, neither party cites any Illinois case that directly

addresses whether covenants of assessments that run with the land are subject to the rule against


                                                 -29-
No. 2--05--1209


perpetuities. However, in Wakefield v. VanTassell, 202 Ill. 41, 48 (1903), our supreme court held

that a condition in a deed requiring a specific use of the land and running perpetually with the land

does not violate the rule against perpetuities. Similarly, in Ashmore v. Newman, 350 Ill. 64, 76

(1932), our supreme court stated that an interest that begins within lives in being and 21 years

thereafter, although it may end beyond then, does not come within the rule. Thus, that a covenant

running with the land may run beyond 21 years does not render it void under the rule against

perpetuities. See Wakefield, 202 Ill. at 48.

       Moreover, the rule applies only to future interests, and not present rights in the land. Warren

v. Albrecht, 213 Ill. App. 3d 55, 58 (1991). In his treatise, The Rule Against Perpetuities, John

Chipman Gray writes that covenants imposing a trust or burden on the land for the benefit of other

land are present interests, and are no more subject to the rule than are common-law easements. J.

Gray, The Rule Against Perpetuities §280, at 312 (4th ed. 1942).5 Similarly, the Restatement (Third)


       5
           "Gray's classic exposition has been frequently quoted and approved by the Illinois court."

Baker v. Bates, 76 Ill. App. 2d 30, 36 (1966); see Chicago Title & Trust Co. v. Shellaberger, 399 Ill.

320, 333 (1948); Fleshner v. Fleshner, 378 Ill. 536, 539 (1941); Danz v. Danz, 373 Ill. 482, 486

(1940); Thomas v. Pullman Trust & Savings Bank, 371 Ill. 577, 586 (1939); Northern Trust Co. v.

Porter, 368 Ill. 256, 261-63 (1938); Riddle v. Killian, 366 Ill. 294, 303 (1937); Heitzig v. Goetten,

347 Ill. 619, 627 (1932); Ryan v. Beshk, 339 Ill. 45, 51 (1930); Keogh v. Peck, 316 Ill. 318, 332

(1925); Kern v. Kern, 293 Ill. 238, 252 (1920); Jansen v. Godair, 292 Ill. 364, 377 (1920); Smith v.

Chester, 272 Ill. 428, 437 (1916); Lachenmyer v. Gehlbach, 266 Ill. 11, 19 (1914); Armstrong v.

Barber, 239 Ill. 389, 402-03 (1909); Brechbeller v. Wilson, 228 Ill. 502, 506 (1907). Gray has also

been cited more recently in two Illinois appellate court cases. Warren, 213 Ill. App. 3d at 58; Deiss

                                                 -30-
No. 2--05--1209


of Property states that the rule against perpetuities does not apply to servitudes. Restatement (Third)

of Property Servitudes §3.3 (2000). Servitudes include all covenants running with the land, whether

they are positive or negative. Restatement (Third) of Property Servitudes §1.3 (2000). More

specifically, several cases in other jurisdictions have held that covenants to pay assessments do not

violate the rule. Kell v. Bella Vista Village Property Owners Ass'n, 258 Ark. 757, 760, 528 S.W.2d

651, 653 (1975); Lowry v. Norris Lake Shores Development Corp., 231 Ga. 549, 551, 203 S.E.2d

171, 173 (1974); see also Heald v. Ross, 47 A. 575, 579 (N.J. Ch. 1900). Specifically, in Kell, the

Arkansas Supreme Court held that although a covenant of assessments was contained in a

declaration that lasted for a term of 26 years and then for successive 10-year periods thereafter, the

covenant did not violate the rule against perpetuities because there was nothing that kept it from

vesting. Kell, 258 Ark. at 760, 528 S.W.2d at 653.

       We agree with the cases of other states, that like restrictive covenants and common-law

easements, the covenant of assessments is not subject to the rule against perpetuities because it is

a present, not a future, interest in property. See Warren, 213 Ill. App. 3d at 58; J. Gray, The Rule

Against Perpetuities §280, at 312 (4th ed. 1942). In this case, the Declaration creates a present

interest in respondent to collect assessments on all the lots in the development. There is no event

that prevents that right from vesting. As a result, the covenant of assessments is a present interest

that does not violate the rule against perpetuities. See Kell, 258 Ark. at 760, 528 S.W.2d at 653.

       Furthermore, because the covenant of assessments is separate from respondent's lien interest,

the validity of the lien interest has no effect on the covenant of assessments. The Restatement gives

the following example and explanation:


v. Deiss, 180 Ill. App. 3d 600, 603 (1989).

                                                 -31-
No. 2--05--1209


               "6. The original deeds to lots in Black Acres, a 120-lot residential subdivision, stated

       that the conveyances were made on condition that the land not be used for other than

       residential purposes, and that on violation of the condition, ownership of the lot should vest

       in the community association for Black Acres. Although the rule against perpetuities applies

       to the executory interest of the association, it does not apply to the servitudes *** that restrict

       use of the land to residential purposes for the benefit of all lots in the subdivision."

       Restatement (Third) of Property Servitudes §3.3, Comment a, Illustration 6 (2000).

The Restatement's example illustrates that even when a covenant provides the contingency upon

which another interest subject to the rule against perpetuities may arise, the covenant itself is not

void pursuant to the rule. Restatement (Third) of Property Servitudes §3.3, Comment a (2000).

Similarly, in this case, although the obligation to pay assessments provides the condition upon which

the lien depends, the assessments themselves are servitudes not subject to the rule.

       Moreover, pursuant to the Declaration:

               "Every provision of this Declaration is hereby declared to be independent of and

       severable from every other provision hereof. If any provision hereof shall be held by a court

       of competent jurisdiction to be invalid, or unenforceable, all remaining provisions shall

       continue unimpaired and in full force and effect."

An unambiguous contract must be enforced as it is written. La Salle National Trust, N.A., 264 Ill.

App. 3d at 67-68. Thus, even if arguendo the provision of the Declaration allowing a lien for unpaid

assessments was void, pursuant to the written covenant the provision requiring the payment of

assessments would remain in effect. See Health Professionals, Ltd. v. Johnson, 339 Ill. App. 3d

1021,1028 (2003). Accordingly, because the covenant of assessments is a vested interest, and

                                                  -32-
No. 2--05--1209


because the lien provision does not affect the validity of the covenant of assessments, the trial court

did not err in finding that the covenant of assessment did not violate the rule.

        Finally, because we have concluded that the validity of the lien provision has no effect on

the covenant of assessments, we need not decide if the provision of the Declaration allowing for a

lien upon nonpayment of assessments is subject to the rule against perpetuities. In both its amended

application for declaratory judgment and its motion for summary judgment, petitioner requested a

declaration that "the Lake Carroll Association's positive covenant of assessment is void from its

inception under the Rule Against Perpetuities." (Emphasis added.) Petitioner did not argue or allege

that the lien, separate from the covenant of assessments, is an interest subject to the rule against

perpetuities. Rather, petitioner specifically requested the court to declare respondent's liens

ineffective on other grounds. Therefore, although petitioner put the liens at issue as part of its

argument that the covenant of assessments was void, it did not challenge the liens themselves on

these grounds. We will not consider arguments petitioner did not raise in the trial court (Jeanblanc

v. Sweet, 260 Ill. App. 3d 249, 254 (1994)), and thus, we will not decide whether respondent's right

to a lien upon nonpayment violates the rule against perpetuities. We find only that the trial court

correctly held that the covenant of assessments was not void under the rule against perpetuities.

Therefore, we reject petitioner's contention that the trial court erred in upholding its obligation to pay

assessment fees that accrued after the issuance of the tax deeds.

                                  C. Interest and Unjust Enrichment

        Petitioner next contends that it is entitled to recover assessment fees it paid respondent and

prejudgment and postjudgment interest because the fees were improperly charged and because

respondent was unjustly enriched by petitioner's payment of the contested assessments. However,


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because the trial court found that none of the assessment fees were improperly paid, it did not reach

these issues prior to denying petitioner's motion for summary judgment. As a result, we will not

render opinions on these issues. Instead we remand this case for the trial court to adjudicate

petitioner's claim of unjust enrichment and prayers for prejudgment and postjudgment interest. See

155 Ill. 2d R. 366(a)(5); Holmes v. Federal Insurance Co., 353 Ill. App. 3d 1062, 1066 (2004).

                                        III. CONCLUSION

       For the foregoing reasons, we reverse the portion of the circuit court of Carroll County's order

that granted respondent's motion for summary judgment and denied petitioner's motion for summary

judgment on the basis that assessments began to accrue on the date of the Tax Deed Orders. We

affirm the portion of that order that determined that respondent's collection of assessments after the

dates of issuance of the tax deeds was proper. We remand the case for the trial court to consider

petitioner's claims of unjust enrichment and prejudgment and postjudgment interest. See 155 Ill. 2d

R. 366(a)(5).

       Affirmed in part and reversed in part; cause remanded.

       GROMETER, P.J., and McLAREN, J., concur.




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