The Illinois Land Title Association has sued Cook County Recorder Karen Yarbrough for refusing to record affidavits of heirship and affidavits of survivorship without also providing a copy of a probate court order.
The complaint was filed in the Circuit Court of Cook County, Illinois, County Department, Chancery Division as Illinois Land Title Association v. Karen A. Yarbrough, in her capacity as Cook County Recorder of Deeds, No. 2018CH14151. It alleges that Yarbrough “is breaching her duty to record deeds and other instruments relating to or affecting the title to real estate in this State in accordance with 55 ILCS 5/3-5010 and 765 ILCS 5/28 by refusing to record heirship deeds or affidavits of heirship in the public record unless they are accompanied by a certified court order declaring heirship.”
According to the complaint, beginning in April 2018, the recorder issued a notice stating that affidavits of heirship and affidavits of survivorship “were being recorded by customers who had not first exhausted the Illinois Statutory & Circuit Court Process” and indicated that the office no longer would accept any affidavits of heirship or affidavits of survivorship for recording unless it is a certified copy from the circuit court.
In addition, the complaint states that the recorder refused to record deeds in which the grantor or grantee is an heir, descendant or legatee or has similar designation without an heirship order.
The complaint stated that the association, title insurers, title agents and real estate practitioners objected to this because it prevented them from placing the interest of heirs in the public record at the earliest practicable date and, they argued, was against Illinois law.
Counsel for the association communicated with the recorder’s chief legal counsel, James Gleffie, who responded May 1, 2018 by stating that the recorder is seeking a state’s attorney opinion on the matter and that it will not record any of these documents until it receives that opinion. Eventually, counsel reached to assistant state’s attorney Alvin Portis to determine the status of the state’s attorney’s opinion and resolve the dispute. Representatives from First American Title Insurance Co., Attorney’s Title Guaranty Fund Inc., Chicago Title Insurance Co., and AmTrust Title met with Portis to resolve the dispute.
Portis sent an email Sept. 14, 2018 that indicated that the recorder was going to implement the procedures that allowed the recording of heirship deeds, affidavits of heirship that include a disclaimer making clear that there has not been a judicial determination regarding the affidavit, and affidavits of intestate distribution. According to the compliant, Portis sent another email Sept. 24, indicating that although the recorder would begin accepting these documents, the recorder wanted to conduct a final internal review within the next week concerning the recording of these documents. The complaint states that neither Yarbrough nor Portis addressed the potential resolution in the next week, or even the following month.
It states that Nov. 5, the recorder’s director of public information, Mario Reed, sent an email to Howard Samson at Greater Metropolitan Title LLC indicating that nothing had changed and that the office would not be accepting heirship deeds or affidavits of heirship unless they are accompanied by a certified order declaring heirship. The complaint states that later that day, Gleffe confirmed Yarborough’s policy.
“As a result, as of Nov. 5, 2018, the recorder has made it clear that she is not going to record heirship deeds or heirship affidavits unless heirship is first proven in a court of law,” the complaint states. “This directly impacts the constituent members of the ILTA, their customers, and the public at large because real estate transactions have closed, and will continue to close, involving heirship deeds and heirship affidavits that they cannot record in Cook County without expending the time and money needed to obtain an heirship order.”
ILTA argued that the recorder does not have the discretion to impose these obligations and that these actions violate her statutory recording duties.
“Section 28 of the Conveyances Act makes no distinction between a deed that identifies the grantor as an heir of the record owner and one that does not,” the complaint states. “In fact, the legislature specified a permissible form of deed in Section 9 of the Conveyances Act, 765 ILCS 5/9, and provided that ‘Every deed in substance in [that] form, when otherwise duly executed, shall be deemed and held a conveyance in fee simple, to the grantee, his heirs or assigns…,’ thus leaving no room for discretion by the recorder concerning the recording of deeds that follow that form.”
It further argued, “Neither of the provisions referenced in Notice, 755 ILCS 5/5-3 or Cook County Circuit Court Rule 12.2, give the recorder the discretion or the authority to ignore the foregoing statutory mandate to record documents related to or affecting the title to real estate ‘as soon as practicable after the receipt of any instrument in writing.’ To the contrary, the recorder’s reliance on 755 ILCS 5/5-3 and Cook County Circuit Court Rule 12.2 is misplaced.”
It argued specifically that section 5-3(a) of the Probate Act says that a court “may ascertain and declare the heirship,” not that the court must declare heirship.
“Not only is section 5-3(a) of the Probate Act permissive, but no judicial determination of heirship is even contemplated where there is an intestate passage of title to descendants under Section 2-1 of the Probate Act, 755 ILCS 5/2-1, which begins as follows (before listing the order of intestate passage of title): ‘Rules of descent and distribution. The intestate real and personal estate of a resident decedent and the intestate real estate in this state of a nonresident decedent, after all just claims against his estate are fully paid, descends and shall be distributed as follows:’
“Contrary to the position being taken by the recorder, descendants are not required to obtain a judicial determination of their rights as an heir under this statutorily specified lineage,” the complaint states. “Further, where a question concerning heirship arises, a court proceeding is only one of the ways to prove heirship.”
ILTA argued that the recorder’s heirship procedures “directly contravene the express legislative intent evident from the Probate Act, which provides that a court ‘may ascertain and declare the heirship’ and that heirship also may be established by ‘any other legal method… in any place or court.’ ”
“Although recorded documents may be challenged through the Fraud and Referral Review statute or a quiet title action, nothing in Illinois law requires proof of validity as a prerequisite to recording,” the complaint stated. “To conclude otherwise would unduly delay and increase the cost of real estate transactions, as heirs will have to incur the costs and time involved in proving their interests in a court of law and title insurers will be unable to insure heirship interests and transactions unless and until they can be made part of the public record.
“The constituent members of the ILTA, their customers (including, but not limited to heirs), and the public at large have a clear right to relief based on their statutory right to record heirship deeds, heirship affidavits, and other instruments relating to or affecting the title to real estate in this state without first proving by heirship order heirship or the entitlement of the parties to the subject instrument to engage in the subject transaction,” the complaint continued.
ILTA requested that the court enter an order of mandamus directing Yarbrough to record heirship deeds, heirship affidavits and other instruments relating to or affecting the title to real estate in the state without first requiring the recording party to prove by heirship order heirship or the entitlement of the parties to the subject instrument to engage in the subject transaction.