Hoch v. Boehme (IL)

Summary: A party cannot establish color of title under Section 13-110 of the Limitations Act (735 ILCS 5-13-110) based on the fact that it paid property taxes for 7 years, if the land was not vacant and unoccupied.


Hoch v. Boehme, 2013 IL App (2d) 120664.


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Facts: Two families, the Hochs and the Schmidts, each claimed superior title to a parcel located between their properties. The Hochs filed suit against the Schmidts to quiet title to the parcel. Both couples traced their claims of ownership to Lillian Boehme, who died in 1974. The Hochs claimed they received the parcel through a trustee's deed from 2003. The Schmidts claimed ownership through quitclaim deeds and assignments of interest from the surviving heirs of Lillian Boehme. It is undisputed that since the 1980s, the Schmidts maintained a fence around the parcel in question and currently raise cattle on it. At trial, the Hochs introduced documentation that they or their predecessors in interest paid the property taxes on the parcel in question since 1994 and claimed that because they paid more than seven years of property taxes, they had color of title under § 13-110 of the Limitations Act (735 ILCS 5/13-110).

The trial court found that the Hochs had superior title based on the chain of title from the deeds presented. In addition, the Hochs had color of title because they had paid taxes on the disputed parcel for a period in excess of seven years. The Schmidts timely appealed.


Holding: Reversed and remanded. The appellate court held that the trial court erred in finding for the Hochs, and remanded the case to the trial court with an instruction to enter a judgment in favor of the Schmidts.

First, the appellate court reviewed the trial court’s decision on the Hochs' color of title claim under § 13-110 of the Limitations Act. Section 13-110 provides that: “Whenever a person having color of title, made in good faith, to vacant and unoccupied land, pays all taxes legally assessed thereon for 7 successive years, he or she shall be deemed and adjudged to be the legal owner of such vacant and unoccupied land, to the extent and according to the purport of his or her paper title.” 735 ILCS 5/13-110 (West 2010). The appellate court found that the Hochs couldn’t prove that the parcel in dispute was “vacant and unoccupied” because the Schmidts had erected a fence enclosing the parcel and raised cattle on it. The court stated that a "fence serves as notice of actual occupancy."

Second, the appellate court reviewed the trial court’s decision on the Hochs' chain of title argument. To prevail in an action to quiet title, the Hochs must actually have title, though it need not be perfect. The appellate court analyzed the chain of deeds and found that the Hochs did not receive title to the parcel in interest. Moreover, the parcel was not abandoned by the fee simple owner, Lillian Boehme, even though she never constructed the private road on that parcel, referenced in a deed. The appellate court applied a principal governing abandonment of easements, noting that "mere nonuse for a fixed period is not of itself sufficient to establish an abandonment." Therefore, the Hochs did not have title to quiet title. For the foregoing reasons, the appellate court concluded that the Schmidts had superior title to the parcel.


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By: ATG Underwriting Department | Posted on: Thu, 02/06/2014 - 12:03pm