The First District recently issued an opinion affirming dismissals of claims and judgment on the pleadings when a homeowners’ association (HOA) development included single-family homes and condominium units and the condominium unit owners paid assessments for maintenance of land surrounding all the homes as well as a separate assessment for maintaining the front lawn of the condominium property. Single-family homeowners paid nothing towards the condominium’s property. The last issue in the appeal highlights the interaction between the Common Interest Community Association Act (CICAA), 765 ILCS 160/1-1, et seq., and the Condominium Property Act, 765 ILCS 605/1, et seq. Bogot v. Haverford Homeowners Ass’n, 2026 IL App (1st) 250080. The appellate court’s ultimate holding that the community association was really a master association under the Condominium Property Act is likely a question of first impression since the adoption of CICAA in 2010.

Facts

Plaintiff condominium unit owners filed a class action lawsuit for direct damages and other relief against their HOA and its directors. 2026 IL App (1st) 250080 at ¶1. The defendant Haverford Homeowners Association was created by the recording of its “community declaration” in 2005, and it was incorporated as an Illinois not-for-profit corporation. 2026 IL App (1st) 250080 at ¶3. The declaration stated that it was intended that the association would not be a master association under §18.5 of the Condominium Property Act or a common interest community association as defined under §9-102(a)(8) of what would eventually be referred to as the Eviction Law, article IX of the Code of Civil Procedure, 735 ILCS 5/1-101, et seq. Id. CICAA became law in 2010. Id. CICAA was intended “to apply to all homeowners associations not already regulated by the Condominium Property Act, either as a condo or master association.” 2026 IL App (1st) 250080 at ¶34.

This basis of this lawsuit arose from the fact that the HOA collected assessments for maintenance and landscaping in equal amounts from all owners of the 50 single-family residences and from the owners of the 48 condominium units. 2026 IL App (1st) 250080 at ¶4. Additionally, the condominium unit owners paid separate assessments for maintaining and landscaping the front lawn of the condominium property. The net result was that the condo owners were paying 49 percent of the assessments for grounds maintenance while 87 percent of the grounds were essentially yards around the single-family residences. The homeowners paid nothing towards maintaining the front lawn of the condominium property. Id.

Throughout the litigation the defendants argued that anyone could access and use any of the community areas, namely, the lawns. 2026 IL App (1st) 250080 at ¶9. The plaintiffs countered that “one cannot use and enjoy another person’s yard” and no “reasonable person [would] feel comfortable ‘using and enjoying’ a stranger’s yard.” 2026 IL App (1st) 250080 at ¶13.

Three of the four claims made by the plaintiffs were resolved by dismissal under either Code of Civil Procedure §2-615 or Code of Civil Procedure §2-619 motions to dismiss. The claims will be discussed below as presented in the opinion. The fourth claim was answered by the defendants and cross-motions for judgment on the pleadings pursuant to §2-615(c) were filed which resulted in judgment for the defendants. 2026 IL App (1st) 250080 at ¶6.

Analysis

A de novostandard of review was applied to all the trial court’s judgments in this case. The First District of the Appellate Court affirmed all of the trial court’s judgments. 2026 IL App (1st) 250080 at ¶1.

The first issue presented was “whether the circuit court erred in dismissing plaintiffs’ claim that defendants’ assessments are unlawful because the covenant for assessments does not run with the land.” Id. The plaintiffs argued that the covenant in the community association declaration requiring the condo unit owners to pay assessments for maintenance did not touch and concern the land because the unit owners were unable to use and enjoy portions of the community area. 2026 IL App (1st) 250080 at ¶9. The defendants countered that the covenant touches and concerns the land because it provides for maintenance and landscaping of the land. Additionally, the “plaintiffs have the right to use and enjoy all the community area.” Id.

The test for determining whether a covenant runs with the land and is therefore enforceable against subsequent owners requires that three criteria be satisfied: (1) the grantor and grantee intended the covenant to run with the land; (2) the covenant must touch and concern the land; and (3) there must be privity of estate between the party claiming a benefit from the covenant and the party burdened by the covenant. 2026 IL App (1st) 250080 at ¶10, citing St. Paul Federal Bank for Savings v. Wesby, 149 Ill.App.3d 1059, 501 N.E.2d 707, 709, 103 Ill.Dec. 390 (1st Dist. 1986), citing Streams Sports Club, Ltd. v. Richmond, 99 Ill.2d 182, 457 N.E.2d 1226, 1266 – 1267, 75 Ill.Dec. 667 (1983). The only issue here was whether the covenant pertaining to assessments touched and concerned the land. 2026 IL App (1st) 250080 at ¶9.

“A covenant touches and concerns the land if it ‘affects the use, value, and enjoyment . . . of the property.’ ” 2026 IL App (1st) 250080 at ¶11, quoting In re County Treasurer, 373 Ill.App.3d 679, 869 N.E.2d 1065, 1078, 312 Ill.Dec. 74 (2d Dist. 2007). Generally, covenants for repair of common areas further the use and enjoyment of property. 2026 IL App (1st) 250080 at ¶11, citing St. Paul Federal Bank, supra, 501 N.E.2d at 710. The appellate court found that the plaintiffs’ own allegations were that the assessments were for maintaining, repairing, and landscaping the land; therefore, taking the plaintiffs’ allegations as true, then the covenants pertaining to assessments touched and concerned the land. 2026 IL App (1st) 250080 at ¶12.

The second issue presented was “whether the circuit court erred in dismissing plaintiffs’ claim that the assessments are unconscionable because they are one-sided against condominium owners and plaintiffs are unfairly surprised by how defendants allocated assessments.” 2026 IL App (1st) 250080 at ¶1. The plaintiffs argued that the unit owners paid 49 percent of the assessments for maintenance of the community land (in addition to paying more for the maintenance of the land in front of the condominium building) while 87 percent of the community land constituted yards surrounding the single-family homes. 2026 IL App (1st) 250080 at ¶16. When unit owners purchased their condominium units they did not have the knowledge to recognize that the equal allocation of assessments amongst all property owners was not typical of other associations when such assessments are allocated based on square footage. The defendants countered that all owners have equal rights to enjoy and use the units, and the assessments are reasonable because they are equal to all owners.

Generally, courts may find an agreement unenforceable if it is procedurally or substantively unconscionable. 2026 IL App (1st) 250080 at ¶17, citing Phoenix Insurance Co. v. Rosen, 242 Ill.2d 48, 949 N.E.2d 639, 647 – 648, 350 Ill.Dec. 847 (2011). Procedural unconscionability arises when a court finds that impropriety in the process of forming the contract deprived a party of a meaningful choice. Examples include disparity of bargaining power, the way the parties entered the contract, whether the parties had a reasonable opportunity to understand the contract terms, and whether important terms were buried in fine print. Here the plaintiffs did not allege any such circumstances that supported procedural unconscionability. Id.

Courts may find substantive unconscionability when contract terms are so one-sided as to oppress or surprise an innocent party, an overall imbalance exists between obligations and rights, and significant cost-price disparity exists. 2026 IL App (1st) 250080 at ¶18. Courts may consider factors supporting procedural unconscionability in examining whether substantive unconscionability exists. 2026 IL App (1st) 250080 at ¶19.

Here the plaintiffs argued that they could not negotiate the community association declaration’s terms and conditions when they purchased their units. 2026 IL App (1st) 250080 at ¶20. However, the appellate court declined to accept this argument as substantive unconscionability. Adhesion contracts “ ‘are a fact of modern life’ and are not, on their own, procedurally unconscionable.” Id., quoting Kinkel v. Cingular Wireless LLC, 223 Ill.2d 1, 857 N.E.2d 250, 266, 306 Ill.Dec. 157 (2006), and Phoenix Insurance, supra, Co., 949 N.E.2d at 654. The plaintiffs also argued that the plaintiffs did not have the sophistication to recognize when buying their units that the declaration’s assessment provisions were inequitable or unusual. The appellate court did not accept this argument because the assessment provisions in the declaration were clear on their face and the plaintiffs did not show that anything prevented them from learning that these provisions were unusual. 2026 IL App (1st) 250080 at ¶20.

Regarding the plaintiffs’ arguments that the assessment provisions were oppressive and one-sided thereby creating a cost-price disparity, the appellate court found that the provisions were not so one-sided as to be unconscionable, “rather than just a bad deal.” 2026 IL App (1st) 250080 at ¶21. Each unit owner could access all the community land, and equal payment from each unit is not unconscionable. Id., citing Carl Sandburg Village Condominium Association No. 1 v. Carl Sandburg Village Condominium Homeowners’ Ass’n, 175 Ill.App.3d 1, 530 N.E.2d 40, 43, 125 Ill.Dec. 122 (1st Dist. 1987) (holding that because all residents had right to use all facilities, residents should reasonably have responsibility to maintain facilities). “[T]he fact that a better deal exists, or may be common, does not make this arrangement so unconscionable as to be unenforceable.” 2026 IL App (1st) 250080 at ¶21, citing Kinkel, supra, 857 N.E.2d at 267.

The third issue presented was “whether the circuit court erred in dismissing plaintiffs’ breach of fiduciary duty claim because plaintiffs had standing to bring a direct claim as individuals.” 2026 IL App (1st) 250080 at ¶1. The trial court dismissed the plaintiffs’ breach of fiduciary duty claims because the plaintiffs sued arguing direct injury rather than asserting derivative claims. 2026 IL App (1st) 250080 at ¶24. The defendants moved to dismiss because the plaintiffs did not have standing to assert direct claims.

The appellate court affirmed that the plaintiffs did not have standing because all of their claims were ultimately based on an argument that the HOA misappropriated money through the assessment process. 2026 IL App (1st) 250080 at ¶26. Misappropriation claims need to be pursued as derivative claims, even if the condominium unit owners had a unique injury because ultimately the claims are based on the association’s funds being misappropriated. The appellate court found that none of the case authority the plaintiffs relied on supported their argument that these were direct injuries on which they could sue, so their claims lacked standing. Id.

The fourth and final issue presented was “whether the circuit court erred in entering judgment on the pleadings for defendants because defendants’ structure does not comply with the statutory regime for homeowners associations.” 2026 IL App (1st) 250080 at ¶1. The plaintiffs argued that upon CICAA being adopted, the community association was no longer in compliance with the law because CICAA prohibits associations that include both condominiums and detached homes unless they are master associations under the Condominium Property Act. 2026 IL App (1st) 250080 at ¶29. According to the plaintiffs, under equitable principles the condos should be severed from the community association. The defendants argue that they are not governed by CICAA and CICAA does not prohibit the defendant community association from be organized solely under the General Not-For-Profit Corporation Act of 1986, 805 ILCS 105/101.01, et seq., and CICAA does not require condominiums to be separated from housing associations. Id. Without expressly saying they are both wrong, the appellate court, in what appears to be a question of first impression, found that both sides of the litigation were wrong on this question.

In Illinois, the Condominium Property Act was adopted in 1963 to regulate condominium property. 2026 IL App (1st) 250080 at ¶31. Section 18.5 of the Condominium Property Act is a lengthy slice of legislation that reiterates many of the provisions from other sections of the Act and applies them to what are called “master associations.” Section 18.5 clearly states that any not-for-profit corporation or unincorporated association that exercises powers of governance over unit owner associations pursuant to recorded covenants is a master association. Id.

CICAA was adopted in Illinois in 2010 to provide similar protections afforded to condominium property owners to owners of single-family, townhome, villa, or other properties. 2026 IL App (1st) 250080 at ¶32. CICAA applies to all common interest community associations in Illinois (except some small associations that do not elect to come within the purview of the Act). Id., 765 ILCS 160/1-10. However, “[a] ‘common interest community’ does not include a master association.” 765 ILCS 160/1-5.

The trial court invited the parties to submit three questions under a Supreme Court Rule 308 certification of questions for statutory interpretation, however the parties declined. 2026 IL App (1st) 250080 at ¶33. Therefore, the trial court ruled that CICAA did not require the condos to be separated from the defendant community association and entered judgment on the pleadings as to the fourth issue.

The appellate court agreed with the trial court’s result. 2026 IL App (1st) 250080 at ¶34. CICAA applies to all homeowners’ associations not already regulated under the Condominium Property Act as condominium associations or master associations. CICAA and Condominium Property Act create a comprehensive regulatory scheme. 2026 IL App (1st) 250080 at ¶35. The appellate court took the analysis a step further to conclude that the defendant community association was a master association bound by §18.5 of the Condominium Property Act. 2026 IL App (1st) 250080 at ¶¶ 36 – 37. The trial court’s judgments were affirmed.

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago

Kenneth Michaels, Jr. is a partner at Bauch & Michaels, LLC, with over four decades of experience in commercial litigation, transactions, and corporate governance. He represents a diverse clientele, including banks, insurance companies, and Fortune 500 businesses, specializing in asset sales, property management, and loan agreements. Ken is also a recognized Illinois “Super Lawyer” in real property law and has contributed extensively to legal education and community service. He teaches at the University of Illinois Chicago Law School and has been a public official in Illinois for nearly 30 years.

In Accentuated Luxury LLC v. Mielle Organics, LLC, No. 25 C 4394, 2026 WL 1533849 (N.D.Ill. June 1, 2026), the Northern District provided a useful primer on the pleading elements required to survive a Rule 12(b)(6) of the Illinois Rules of Professional Conduct of 2010 (RPC) motion to dismiss in the context of a designer’s oral contract dispute with two property owners and their haircare business.

The plaintiffs alleged a breach of three express contracts — Contracts A, B and C — for interior design services done by the defendants on three separate properties: a Florida residence, an Indiana residence, and a corporate headquarters. None of the contracts were in writing. The plaintiffs sought damages for about two years’ worth of services on the three sites.

The plaintiffs alleged that the parties’ express contract was defined by their course of performance, which largely followed a three-step sequence: (1) the defendants verbally would request the plaintiffs’ services, (2) the plaintiff would purchase materials up front and provide services, and (3) the plaintiffs’ would later invoice the defendants for the services provided.

In largely sustaining the plaintiffs’ claims, the court set forth the requisite pleading elements for breach of contract in Illinois.

A breach-of-contract plaintiff must allege (1) the existence of an enforceable contract, (2) performance by the plaintiff, (3) breach by the defendant, and (4) damages. A contract can be either express or implied in fact. A valid contract requires offer, acceptance, and consideration, and there must be mutual assent to the contract’s key terms. Mutual assent is determined by the actions of the parties; it is not enough for one party to “subjectively believe a contract is formed.” 2026 WL 1533849 at *3.

An implied-in-fact contract contains all elements of an express contract with the salient difference being that its terms are inferred from the parties’ conduct. An implied-in-fact contract is one in which a contractual duty is imposed by a promissory expression gleaned from facts and expressions of a promisor showing an intention to be bound. Id.

Contracts A and B

The court held that the plaintiffs sufficiently alleged enforceable implied-in-fact contracts for Contracts A and B (the Indiana and Florida projects, respectively). The court focused on the allegations that the defendants made an offer to the plaintiffs to perform design services, and that the plaintiffs accepted the offer by commencing to perform services on the property.

The court also thought it was important to note that the plaintiffs’ allegations that the defendants verbally agreed to pay a $10,000 monthly stipend; agreed to reimburse the plaintiffs for travel, lodging, and material purchases; and, critically, paid multiple invoices. The court viewed the allegations as setting forth sufficient indicia of a meeting of the minds. In short, the plaintiffs’ allegations plausibly suggested more than a unilateral expectation of reimbursement on the part of the plaintiffs. Id.

The defendants argued that Contract B — which involved a Florida house — was barred by the one-year rule under the Frauds Act, 740 ILCS 80/0.01, et seq., commonly known as the statute of frauds, since this contract lacked an end date. The statute of frauds’ one-year rule posits that if a contract cannot possibly be performed within one year of its formation, it is barred unless it is written. The test is whether the contract is capable of performance within one year of inception, not whether completion during that time is likely. 2026 WL 1533849 at *4. Rejecting the defendants’ statute of frauds’ argument, the court found there was nothing in the complaint allegations to suggest that the plaintiffs’ design services could not have been performed within one year. 2026 WL 1533849 at **4 – 5.

Contract C

The court did grant without prejudice the defendants’ motion to dismiss the plaintiffs’ Contract C claim, which involved a commercial site. The court found the plaintiffs failed to adequately plead mutual assent to this contract’s terms. The court noted that unlike the plaintiffs’ Contracts A and B allegations, the plaintiffs failed to allege that the individual defendants paid Contract C invoices. Instead, the plaintiff vaguely alleged that the corporate defendant usually paid the invoices. The court ruled that absent a documented history of the defendants paying the plaintiffs’ invoices — as was alleged for Contracts A and B — the plaintiffs did not plausibly allege mutual assent to Contract C’s terms. At most, the plaintiffs portrayed a “subjective belief” that the defendants would reimburse the plaintiffs. 2026 WL 1533849 at *5. The court underscored the principle that unilateral understandings of a claimant do not rise to the level of an enforceable oral contract under Illinois law. Id.

Takeaways

The case illustrates in sharp relief the importance of having a written agreement that spells out each sides reciprocal obligations. Failing that, a court will look to the parties’ course of conduct in efforts to supply missing contract terms. Accentuated Luxury also stresses that the statute of frauds’ one-year rule will not bar a claim unless its objectively impossible to complete performance within one year of a contract’s making. Finally, the case cements the proposition that a plaintiff’s subjective belief or unilateral expectation of being paid is not enough to state an enforceable, express contract claim.

For more information about commercial disputes, see BUSINESS AND COMMERCIAL LITIGATION (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Paul B. Porvaznik, Bielski Chapman, Ltd., Chicago

Paul Porvaznik is head of litigation at Bielski Chapman, Ltd., in Chicago, where he concentrates on complex commercial litigation. Porvaznik is a contributing author to the Chicago Daily Law Bulletin and a member of the Chicago Bar Association. He received his B.S. from Boston University and his J.D. from DePaul College of Law.

In Harvey, the defendant was charged with first-degree murder under an accountability theory. 2026 IL App (5th) 230623 at ¶3. The state sent the defendant’s attorney an extensive letter outlining the state’s interest in entering into a proffer agreement. Paragraph number 4’s proposal stated that if the defendant testified contrary to his proffer, then the state could use the proffer statements as evidence in its case-in-chief or as rebuttal evidence. 2026 IL App (5th) 230623 at ¶5.

The defendant and his attorney signed the proffer letter. The defendant gave a highly incriminating proffer to the prosecutor and a detective with his attorney present. The proffer was not recorded. The defendant later terminated his attorney and was appointed a public defender. 2026 IL App (5th) 230623 at ¶¶7 – 8.

The public defender filed a motion to suppress the proffer because the statements were made in the course of plea negotiations under S.Ct. Rule 402(f) (neither plea discussions nor plea agreements can be used against a defendant). The motion argued that a paragraph in the proffer letter that precluded the defendant’s attorneys from arguing anything inconsistent with the undocumented statement was a complete waiver of his rights to plead not guilty, remain silent, or have a trial. The motion also argued that that the proffer letter was unconscionable and that the original attorney had improperly informed the defendant about the meeting of the letter. 2026 IL App (5th) 230623 at ¶9.

The trial court held a hearing during which the original attorney testified regarding his belief that the proffer was for the purposes of plea negotiations and to help the defendant get a better sentence. 2026 IL App (5th) 230623 at ¶¶10 – 11. The attorney also testified that he believed that the proffer could be used to impeach the defendant if he testified inconsistently with it. 2026 IL App (5th) 230623 at ¶53.

The trial court held that the proffer was part of the plea-bargaining process under Rule 402(f) and was inadmissible in the state’s case-in-chief but could be used as impeachment if he testified. The state appealed. 2026 IL App (5th) 230623 at ¶27.

On appeal, the appellate court stated that the Illinois Supreme Court had held in People v. Friedman, 79 Ill.2d 341, 403 N.E.2d 229, 235, 38 Ill.Dec. 141 (1980), that Rule 402(f) must be understood in the context of the reasonable expectations of the defendant at the time of the statement. The first test under Friedman is whether the accused exhibited a subjective expectation to negotiate a plea, and the second is whether the expectation was reasonable under the totality of the circumstances. If a defendant expressed a clear indication of intent to pursue plea negotiations, then a statement would be considered plea-related. 2026 IL App (5th) 230623 at ¶¶34 – 35.

The appellate court rejected the state’s argument that because the defendant did not testify at the suppression hearing, there was no way to know what his subjective expectations were because the defendant signed his name next to language in the proffer that read, “I nevertheless want to pursue negotiations with the St. Clair County State’s Attorney’s Office.” 2026 IL App (5th) 230623 at ¶38. Additionally, the defendant gave a highly incriminating proffer. Therefore, the trial court reasonably inferred that the defendant gave his proffer with the intent to plead guilty upon successful plea negotiations. Therefore, he had demonstrated a subjective expectation to negotiate a plea.

Next, the appellate court concluded that this expectation to plead guilty was reasonable because the state had initiated the proffer discussion through its letter to the original attorney and the letter stated that it was “a preliminary step to entering a plea and cooperation agreement.” 2026 IL App (5th) 230623 at ¶39. The attorney had also testified that he believed that defendant understood that if he did not accept the proffer’s terms, then there would not have been a favorable plea from the state. The defendant also gave a detailed explanation of his involvement in the shooting during the proffer and was encouraged by his attorney to be truthful. Therefore, it was objectively reasonable for him to believe that he was engaged in a plea-related discussion. 2026 IL App (5th) 230623 at ¶¶40 – 41.

The appellate court also rejected the state’s contention that the defendant waived his Rule 402(f) protections because the proffer was an enforceable contract that had explicitly listed under what circumstances the statements could be used. 2026 IL App (5th) 230623 at ¶46. However, the hearing testimony had established that the original attorney had assured the defendant that his proffer statements could be used only to impeach him. Because the attorney had misunderstood paragraph number 4, the defendant only made a voluntary waiver of his proffer statements for impeachment. 2026 IL App (5th) 230623 at ¶¶52 – 53.

For more information about criminal law, see CRIMINAL RECORDS: EXPUNGEMENT AND OTHER RELIEF (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Matthew R. Leisten, Ogle County State’s Attorney’s Office, Oregon, IL

Matthew R. Leisten serves as the First Assistant State’s Attorney for the Ogle County State’s Attorney’s Office in Oregon, Illinois. In his role, he provides essential updates on caselaw relevant to search warrants, focusing on issues such as good faith, staleness, and the impact of modern technology on legal procedures. His experience includes handling complex warrants involving advanced technologies like geofences and Triggerfish. Additionally, Leisten contributes to legal education through publications and presentations, ensuring that attorneys stay informed about current legal trends and practices.

Excerpted from §§5.7 – 5.10 of Steven R. Hunter, Ch. 5, Plea Bargaining, FEDERAL CRIMINAL PRACTICE (IICLE^®, 2026)

The first step in every plea negotiation is deciding whether to engage in them. Practitioners should keep in mind that an attorney who never goes to trial will not have a credible threat of trial when negotiating. The percentage of guilty pleas has been decried as too high in some quarters and a trial is not something to be avoided in every case. A bedrock principle of our system is that the defendant, not the lawyer, decides whether to plead guilty. Once a lawyer has clearly explained the law and the evidence to the client and has offered advice, the attorney should abide by the client’s decision. But the harsh reality of practicing criminal defense in federal criminal court is that plea negotiations will be necessary in the majority of cases.

Timing and General Considerations

Whether and when a defendant or the government should engage in plea negotiations depends on many factors. Calculating the expected benefits, the costs, and a defendant’s options can sometimes involve a complex balancing of competing considerations and uncertainties, including the direct and indirect costs of a trial in terms of financial expense, anticipated negative publicity, emotional strain on the defendant and the defendant’s family, and the potential civil and administrative consequences of conviction. Of particular importance to some defendants and their attorneys is the immigration consequences of a conviction. A defense attorney has the duty to advise a client if deportation will be the result of a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 176 L.Ed 2d 284, 130 S.Ct. 1473 (2010). This conversation must take place before making the decision to engage in plea negotiations because for some defendants any chance of avoiding deportation could outweigh the risk of a greater sentence after losing a trial. Usually, however, the overriding considerations relate to sentencing outcomes. One effect of the Federal Sentencing Guidelines, even though they were made only advisory by United States v. Booker, 543 U.S. 220, 160 L.Ed.2d 621, 125 S.Ct. 738 (2005), is that they still afford federal defendants a greater degree of predictability concerning the most pertinent sentencing variables and outcomes than is possible in most state courts. When applicable, the impact of mandatory minimum sentences and what steps must be taken to receive any lesser sentence are even more predictable.

Sometimes, the decision whether to engage in plea negotiations must be made quickly. In multi-defendant cases, especially when the option to cooperate with the government is available, the question of when to engage in plea negotiations is usually answered by the well-worn adage, “The first one on the bus gets the best seat.” In some cases, such as prosecutions in which a defendant’s ability to assist the government in a covert investigative capacity may be short-lived, it is imperative to move quickly in deciding whether to cooperate in the investigation of crimes by others. Sometimes, events may even force a defendant to make that choice at or near the time of arrest. In a single-defendant white-collar crime case, however, the timing of when to initiate plea negotiations may be less critical. Even then, time is seldom on a defendant’s side. Because the government’s investigation of the offense usually continues after indictment, the strength of its evidence, including evidence relating to aggravating sentencing factors, typically increases the closer the case gets to trial. In such cases, holding out for a better deal may have the opposite result.

In fact, there are instances in which there are advantages to entering plea negotiations even before indictment. Early negotiation can reduce legal defense costs, lead to resolution of a case on limited terms before the prosecution has discovered the full scope of a defendant’s criminal activities, and minimize adverse publicity. It may also lead to significantly greater opportunities for a defendant to earn a sentencing reward by cooperating with the government in its investigation and prosecution of others.

In some cases, however, especially in some complex white-collar crime prosecutions, it may be important to delay plea negotiations until after extensive discovery can be reviewed, all possible defenses can be explored, and areas of potential negotiation can be identified. If the “first one on the bus” adage is inapplicable, a trial would be lengthy, and the government has the advantage of months, or even years, of preparation before the indictment was returned, then preparation for plea negotiations may merge with trial preparation and take almost as much time, if not more.

On the other hand, defendants who face lengthy trials may be in a better bargaining position earlier than later because an early guilty plea may induce the government to be more generous in its concessions in order to prevent the waste of considerable time and resources in trial preparation that otherwise could be invested on other investigations and prosecutions.

Usually, a primary consideration in whether to negotiate a guilty plea is the strength of the government’s evidence and attendant likelihood of conviction at trial, weighed against the consequences of a plea of guilty, including the likely sentence or deportation. If, as is typical in federal prosecutions, the strength of the government’s evidence is high, some defendants would be well served by engaging in plea negotiations. However, there are many situations in which the defendant has little or no incentive to plead guilty. The age, health, and immigration status of defendants have a great bearing on the wisdom of pursuing a plea agreement. For example, a long mandatory minimum for a middle-aged client is tantamount to a life sentence. Even if there is no mandatory minimum, a defendant with an initial Guidelines range of 360 to life is unlikely to negotiate away most of that time. If the defendant is old or in poor health, it may make no sense to pursue a guilty plea. Similarly, if deportation is certain, defendants may choose to take any chance at an acquittal, no matter how small, rather than be sent to a country where they may know no one and do not speak the language. It is important for practitioners to consider all the defendant’s circumstances and wishes before advising to pursue a plea negotiation.

Absent a prohibitively high mandatory minimum or certain deportation, the starting consideration in determining whether plea negotiations would be advantageous is generally the degree to which a guilty plea would result in a lower sentence. Even before the Guidelines existed, federal judges, like their state counterparts, typically imposed lower sentences on defendants who pleaded guilty than on those who went to trial. Were that not so, almost every case would go to trial, as every sentencing judge knows. Moreover, a defendant who candidly admits guilt and expresses remorse is less likely to be viewed by a sentencing judge as a threat of recidivism than a defendant who displays a defiant attitude and demands a trial even in the face of overwhelming evidence. Thus, for both practical and policy reasons, defendants who plead guilty almost always receive a lower sentence than if they had been convicted at trial.

Those practical and policy considerations are also embodied in the Guidelines, which afford a defendant a two-level downward adjustment in offense level for acceptance of responsibility through a candid guilty plea and, in most cases, an additional one-level adjustment for pleading guilty early if the defendant’s offense level is 16 or higher. Guidelines §3E1.1. In more serious cases, especially when it is known that the sentencing judge is likely to adhere closely to the Guidelines, the reduction in sentence afforded by those adjustments may be sufficient to justify a guilty plea. Even in lesser cases in which a two-level reduction in offense level may reduce the Guidelines sentencing range by only one to four months, that may be enough to move a defendant into a sentencing zone in which probation or some form of alternative sentencing may become a sentencing option under the Guidelines. See Guidelines §5C1.1.

Even when a defendant faces a mandatory minimum sentence that otherwise would override any benefit for acceptance of responsibility, a guilty plea, in combination with other factors, may qualify a defendant for the so-called “safety valve” provisions of 18 U.S.C. §3553(f) and Guidelines §5C1.2. Not only may those provisions enable a defendant to escape the application of a mandatory minimum penalty and enable the defendant to receive the benefit for acceptance of responsibility under the Guidelines, but eligibility for the safety valve in drug cases also results in an additional two-level reduction in offense level. Guidelines §2D1.1(b)(18).

The gap between the expected sentence following a guilty plea or conviction at trial may be even wider in cases in which it can be anticipated that the defendant will testify at trial. If a defendant is convicted and deemed to have lied, the defendant would qualify for a two-level upward adjustment in the offense level for obstruction of justice. Guidelines §3C1.1.

Beyond those essentially arithmetic considerations regarding guilty pleas under the Guidelines, plea negotiations may have the greatest impact in resolving sentencing issues of a more factual nature, such as the amount of drugs involved in relevant conduct in a drug case (see §5.12 below) or the amount of loss or restitution involved in a white-collar crime case. Even in cases in which the government’s evidence of guilt may be exceedingly strong, its evidence on such sentencing facts may get thin around the edges, making such issues ripe for a compromise resolution through plea negotiations.

Finally, when deciding whether to accept a plea agreement, a defense attorney should always keep in mind that the court also hears from a probation officer through the presentence investigation. If a defendant enters into a nonbinding plea agreement, a probation officer may reach different Guidelines calculations, which the judge can accept. Most plea agreements contain language making this clear, such as “defendant understands that the probation office will conduct its own investigation and the Court ultimately determines the facts and law relevant to sentencing, and the Court’s determinations govern the final Guidelines calculation.” The value of the terms of a plea agreement must be considered in this context. For example, the government may agree that a defendant is entitled to a minor role downward adjustment of the defendant’s offense guideline. However, a probation officer may recommend against it. Federal judges sometimes accept the recommendations in a presentence report, even if it is contrary to a plea agreement between the prosecution and the defense.

Plea Declaration

Not every negotiation will end in an agreement. Even in cases in which the defendant does not wish to go to trial, there must be something beneficial to the defendant. Otherwise, a defendant can proceed with a plea declaration. A plea declaration is a document created by a defense attorney. It should contain sufficient facts to support a plea of guilty, lay out the statutory maximum and minimum sentence, and calculate the applicable Guidelines range. It should also detail the defendant’s trial rights being waived and the defendant’s appellate rights. Finally, it should describe the limitations of the plea and the consequences, e.g., that the prosecutor will be free to make a sentencing recommendation and will inform the probation officer writing the presentence report of all the facts believed to be relevant.

A plea declaration offers certain advantages. One advantage is that the defense attorney controls the content. The factual basis must be sufficient to support an admission of guilt. However, a defense attorney need not include all of the negative facts that a prosecutor will likely insist on for a negotiated plea. Another advantage is that plea agreements often include appellate waivers. Such waivers ensure that a prosecutor will not have to worry about an appeal of the validity of the plea or the sentence. These waivers benefit the prosecutor but not the defendant, and if the prosecution offers a plea agreement that simply summarizes the facts and the guidelines calculations but does not offer the defendant any benefit, they should not be agreed to.

Plea declarations are not without cost or risk. Pleas of guilty by the defendant are under oath. If a defendant denies relevant conduct that the court believes occurred or makes some other factual representation that the court deems to be false, the court may impose a two-point enhancement to the defendant’s offense level for obstruction under Guidelines §3C1.1. This would trigger loss of a two-point reduction in the defendant’s offense level for acceptance of responsibility under §3E1.1(a). In addition, without an agreement, the prosecution may refuse to move the court for a one-point decrease under §3E1.1(b). Under Application Note 6 of Guidelines §3E1.1, “an adjustment under subsection (b) may only be granted upon formal motion by the Government at the time of sentencing.” In addition, without an agreement, the prosecution may refuse to move the court for a one-point decrease under §3E1.1(b). Awarding or withholding the one-point decrease depends on whether the defendant notified the prosecution early enough in the process “to avoid preparing for trial.” Id. In 2023, §3E1.1(b) was amended to more clearly define what constitutes preparing for trial. “Preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered ‘preparing for trial’ under this subsection. Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered ‘preparing for trial.’ ” Therefore, fair-minded prosecutors will make the motion even with a plea declaration if it is indicated that the defendant will not be going to trial in a timely fashion. But timely could be in the eye of the beholder. Practitioners should know before pursuing a plea declaration what the prosecution will do regarding §3E1.1(b). In addition, plea declarations do not preserve the right to appeal denials of pretrial motions unless there is an agreement with the prosecution and the court to allow for it. A conditional plea must be in writing and reserve the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea. Fed.R.Crim.P. 11(a)(2). Prosecutors are free to refuse and sometimes will if a defendant pursues a plea declaration.

Disagreements Within Plea Agreements

Even if the defense and prosecution cannot agree on every issue in a plea negotiation, an agreement may still be reached. Prosecutors will often accept “agree to disagree” provisions, in which the agreement states the position of each party and indicates that this will be a contested issue a sentencing. For example, the defense may feel that the defendant deserves a guidelines reduction for mitigating role under §3B1.2 of the Guidelines, and the prosecution may disagree. An “agree to disagree” provision stating this allows both sides to argue their positions at a sentencing hearing while still reaching an overall plea agreement that would benefit both sides.

Steven R. Hunter, Law Office of Steven R. Hunter, Chicago

Steven R. Hunter is the founder and owner of the Law Office of Steven R. Hunter, in Chicago, where he concentrates exclusively on criminal defense in both state and federal courts. Hunter has devoted his career to criminal defense since 1988, representing clients in matters ranging from misdemeanors to the most serious felony and federal prosecutions. He is a member of the National Association of Criminal Defense Lawyers, the United States District Court Trial Bar for the Northern District of Illinois, and the Federal Defender Program trial panel. Hunter has been selected 18 times as an Illinois Super Lawyer by Thomson Reuters’ attorney rating service, an honor recognizing outstanding attorneys through peer nominations, independent research, and professional achievement. He earned his A.B. and J.D. from the University of Michigan.

On June 1, 2026, the Illinois General Assembly passed The Civil Rights Safeguard Act, Senate Bill 3777, which would amend the Illinois Human Rights Act to expressly prohibit employers from using hiring criteria, employment policies, or workplace practices that appear neutral but have an unjustified discriminatory effect (disparate impact) on protected groups.

The bill is yet another amendment to the Illinois Human Rights Act which prohibits discrimination, sexual harassment, and retaliation in connection with employment, housing, public accommodations, financial credit, and education. According to the Illinois Department of Human Rights, the legislation is intended to keep disparate-impact protections firmly embedded in Illinois law. Those protections reflect a longstanding legal theory recognized under federal law, Title VII of the Civil Rights Act of 1964. The Department has described the legislation, in part, as a response to what it views as a lack or reduction of disparate-impact enforcement at the federal level.

Disparate impact is not intentional discrimination. It asks whether a seemingly neutral policy disproportionately affects a protected group, regardless of intent.

To that end, the legislation defines “criteria or methods”, as “practices, policies, and groups of practices or policies that may have the effect of subjecting individuals to discrimination prohibited under this Act”. It also makes it “a civil rights violation for any employer, employment agency, or labor organization to use criteria or methods in any act as set forth in Section 2-102 that have the effect of subjecting individuals to discrimination on the basis of unlawful discrimination, citizenship status, family responsibilities, work authorization status, arrest record, or conviction record.”

Employers may defend a practice by showing it is job related and consistent with business necessity, unless a less discriminatory alternative would achieve the same objective.

It is anticipated that the Governor will sign this bill into law on or before the end of August 2026, and it would take effect on January 1, 2027. If it is signed into law, employers should review current policies, hiring and promotion practices, and candidate screening and assessment tools (including the use of AI) to ensure they do not unintentionally create a disparate impact.

For more information about employment and labor law, see EMPLOYMENT DISCRIMINATION (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Catherine R. Locallo, Robbins Schwartz, Chicago

Catherine R. Locallo, a partner at Robbins Schwartz, specializes in labor and employment law with a focus on education and board governance. She provides guidance on employment law, collective bargaining, and compliance with various acts. Catherine started as a paralegal, joined Robbins Schwartz in 2004, and became a partner in 2017. She holds a J.D. from The John Marshall Law School and a B.S. from Southern Illinois University. Notably, she is also involved in multiple professional organizations and community activities, including the Glenview Stars Hockey Association.

In Preston C. v. Zakariya S., 2026 IL App (5^th) 251049, Illinois had the proper jurisdiction over an interstate parentage action where the minor child divided time between Illinois and Iowa for the six months leading up to the filing of the petition to establish parentage. The father filed a petition to establish parentage in Illinois and mother filed a motion to dismiss for lack of jurisdiction arguing the minor child, who was four and a half years old at the time of filing, was a resident of Iowa for six months immediately preceding the filing of the petition. The mother subsequently filed a competing petition in Iowa. The trial court conducted a lengthy evidentiary hearing with multiple witnesses concerning the child’s connections to both Iowa and Illinois and ultimately denied the mother’s motion. The mother appealed and the fifth district affirmed. The child was properly found to have no home state because he did not consecutively reside in either state for six months preceding the filing of the petition and the evidence supported such a finding where both parties testified the child split time between both households. The child had also never spent the entirety of a month in either Iowa or Illinois. Therefore, pursuant to §201(a)(2) of the UCCJEA, the trial court properly considered whether Illinois had significant connections to the matter and where the evidence was available. The trial court concluded that both the child and the father had significant connections to Illinois and significant evidence concerning the matter was located in Illinois, including witnesses, medical records, family connections and personal relationships with non-family. 750 ILCS 36/201(a)(2). The court further held that the trial court could consider evidence outside the six-month home-state period when evaluating significant connections, and that the Illinois court, as the first filed court, was not required to initiate communication with the Iowa court. Accordingly, the denial of the mother's motion to dismiss was affirmed. Justice Vaughn issued a dissenting opinion contending that it was error for the trial court to have never determined whether father was a parent or “person acting as a parent” under the UCCJEA, that the father had failed to meet the definition of “person acting as a parent”; and even notwithstanding, Iowa was the home state of the child and father’s parenting time period were simply temporary absences from Iowa since the child was living with mother in Iowa, attending preschool in Iowa, and father was provided parenting time based on the time the child was not in school. 2026 IL App (5^th) 251049 at ¶103.

In re Marriage of Vanduyne, 2026 IL App (3d) 250249, demonstrates a child support payment may not be offset by personal debt owed from one party to the other. It was error for the trial court to have ordered an $800 per month child support award to be “offset” by $500 per month in attorneys’ fees owed from the wife to the husband until the attorney fee debt was paid in full. 2026 IL App (3d) 250249 at ¶1. A court may not offset child support payments to satisfy a personal debt owed by one parent to the other, including an attorney-fee judgment. Child support belongs to the child and takes precedence over financial obligations between the parents.

The parties’ premarital agreement and resulting property distribution created an extreme disparity in financial resources. The trial court declined to award an upward deviation from the guideline child support, as it was an abuse of discretion. It is well settled that a child's right to support cannot be adversely affected by a premarital agreement, and child support must be sufficient to allow the children to experience a lifestyle reasonably comparable to that which they would have enjoyed had the marriage remained intact. Because the husband received essentially the entire marital estate and significant income-producing assets while the wife was left with substantial debt and limited resources, the guideline support calculation did not adequately serve the children's best interests. The court reversed and remanded with direction to consider the husband’s overall wealth, not just his income, in evaluating an appropriate upward deviation.

For more information about family law, see FAMILY LAW: DISSOLUTIONS OF MARRIAGE COURT PROCEEDINGS (IICLE^®, 2024). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Michelle A. Lawless, Law Office of Michelle A. Lawless LLC, Chicago

Michelle A. Lawless, founder of The Law Office of Michelle A. Lawless LLC, has over 20 years of experience in family law. After a distinguished career at a prestigious litigation firm, she started her own practice to offer a more compassionate and resolution-focused approach. Michelle specializes in collaborative law, mediation, and attorney-assisted mediation, helping clients navigate family disputes with minimal conflict. She is recognized for her thought leadership, extensive financial experience, and dedication to creating better outcomes for families.

On March 20, 2023, plaintiff Daniel Solano, a commercial truck driver, was issued a citation by the defendant, the City of Chicago. Solano v. City of Chicago, 2026 IL App (1st) 242135, ¶2. The citation alleged that the plaintiff’s tractor-trailer exceeded the applicable weight limit established under the defendant’s municipal code. Id. The citation imposed a fine of $2,655 and advised the plaintiff that he could contest the citation by requesting an administrative hearing before the defendant’s Department of Administrative Hearings (DOAH). Id.

The plaintiff timely requested an administrative hearing before DOAH and concurrently filed a lawsuit in the Circuit Court of Cook County challenging DOAH’s authority to adjudicate the alleged weight violation. 2026 IL App (1st) 242135 at ¶3. Specifically, the plaintiff asserted that the Illinois Municipal Code did not authorize the defendant to adjudicate overweight vehicle violations through its administrative hearing process. Id. The plaintiff also alleged that the Illinois Vehicle Code, 625 ILCS 5/1-100, et seq., prohibited the defendant from imposing fines in excess of $250 for overweight vehicle violations. 2026 IL App (1st) 242135 at ¶3.

While the circuit court action was pending, the Illinois Supreme Court issued its decision in Cammacho v. City of Joliet, 2024 IL 129263, 240 N.E.3d 1137, 476 Ill.Dec. 525. In light of that decision, the plaintiff withdrew Counts I and II, which challenged the defendant’s authority under the Illinois Municipal Code. 2026 IL App (1st) 242135 at ¶4.

Circuit Court

In his amended complaint, the plaintiff sought a “declaration that all provisions of the [the defendant’s municipal code] that enabled the collection of fines, penalties and other amounts in excess of $250 for violation of ordinances governing operation of vehicles through administrative adjudication [we]re void for exceeding what [wa]s permissible under the Vehicle Code.” 2026 IL App (1st) 242135 at ¶5. The plaintiff also asserted a claim for unjust enrichment, alleging that the defendant unlawfully retained fines that exceeded the amount legally authorized under the Vehicle Code. The plaintiff asserted these claims both individually and on behalf of a putative class of individuals who were fined more than $250 for weight violations adjudicated through DOAH. Id.

The defendant moved to dismiss the amended complaint, arguing that the plaintiff’s claims were not ripe because DOAH had not yet entered a final decision upholding the citation against the plaintiff. The defendant further argued that, as a home rule unit of government, it possessed the authority to impose the challenged fines. Id.

The circuit court granted the defendant’s motion to dismiss, concluding that the defendant’s home rule authority authorized the challenged fines. 2026 IL App (1st) 242135 at ¶7. The plaintiff appealed. Id.

Appellate Court

The appellate court considered two principal issues: (1) the justiciability of the plaintiff’s claims and (2) DOAH’s adjudicatory authority over overweight vehicle violations. 2026 IL App (1st) 242135 at ¶11.

The appellate court first examined whether the plaintiff’s claims were ripe for review. 2026 IL App (1st) 242135 at ¶17. Applying the two-part test established in Morr-Fitz, Inc. v. Blagojevich, 231 Ill.2d 474, 901 N.E.2d 373, 384, 327 Ill.Dec. 45 (2008), the court concluded that the first prong was satisfied because the issues presented were legal, rather than factual, questions. 2026 IL App (1st) 242135 at ¶19. The appellate court also found that the second prong was met because the plaintiff’s alleged injury was neither speculative nor contingent, and withholding judgment would subject other commercial truck drivers to a similar hardship. 2026 IL App (1st) 242135 at ¶20.

After determining that the claim was ripe, the appellate court considered whether the plaintiff had failed to exhaust his administrative remedies. 2026 IL App (1st) 242135 at ¶22. It concluded that exhaustion was not required because the plaintiff’s challenge concerned DOAH’s jurisdiction, and jurisdictional challenges fall within a recognized exemption to the exhaustion doctrine. Id.

Upon determining that the plaintiff’s claims were justiciable, the appellate court considered DOAH’s authority pursuant to the defendant’s powers as a home rule unit of government. 2026 IL App (1st) 242135 at ¶33. The appellate court began with the began with the principal that home-rule powers are to be construed broadly and therefore presumed that the defendant possessed authority to adjudicate overweight violations unless a specific statutory limitation could be identified. Id.

The plaintiff argued that such a limitation appeared in Illinois Vehicle Code §§11-208.2 and 11-208.3, 625 ILCS 5/11-208.2 at 5/11-208.3. The appellate court rejected that argument, concluding that the plaintiff’s position was based upon an incorrect assumption that the provisions governing standing and parking violations also applied to overweight vehicle violations. 2026 IL App (1st) 242135 at ¶¶36, 42. Instead, the appellate court observed that the Vehicle Code separately addresses weight violations, thereby demonstrating its intent to distinguish them from other offenses. 2026 IL App (1st) 242135 at ¶45. Accordingly, because the legislature did not expressly preempt a home-rule municipality’s authority to adjudicate overweight vehicle violations or impose the challenged fines, the court held that DOAH had jurisdiction over the matter. 2026 IL App (1st) 242135 at ¶¶45 – 46.

Ultimately, the appellate court affirmed the circuit court’s dismissal of both counts of the plaintiff’s complaint.

For more information about government law, see SPECIAL DISTRICTS (IICLE®, 2026) Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Laura M. Julien, Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C., Sugar Grove

Laura M. Julien is a partner with Mickey, Wilson, Weiler, Renzi, Lenert & Julien, P.C. in Sugar Grove, Illinois, where she concentrates her practice in municipal law, school law, corporate law, and real estate matters. She is a member of the Illinois State Bar Association, Kane County Bar Association, State Bar of Wisconsin, National Council of School Attorneys, Illinois Local Government Lawyers Association, and Illinois Council of School Attorneys. She is also a recurrent presenter with the National Business Institute. Laura earned her undergraduate, with honors, from the University of Wisconsin and her J.D. degree from the University of Notre Dame Law School.

This month provides an opportunity to discuss another perennial favorite: property line disputes between unneighborly neighbors involving strategic gardening, moving fence posts, and purloining monument pins. The First and Fourth Districts, in Penn v. Fill & Novak, 2026 IL App (1st) 250920-U, and Dane v. Burnell, 2026 IL App (4th) 251384-U, respectively, weigh in on claims of adverse possession, trespass, nuisance, and more.

Penn v. Fill & Novak

William F.A. Penn and Julie A. Penn were neighbors with Charles Fill and Darlene Novak. 2026 IL App (1st) 250920-U at ¶¶4 – 5. The residence was located on a lot set back several hundred feet from the street, with three separate, additional vacant wooded parcels intervening between the street and the residence. Id. The University of Chicago purchased the three parcels in 2021. Id. The three parcels were also adjacent to the Fill and Novak residence, and a long asphalt driveway on the eastern-most edge of the three parcels gave street access to the Penns. Id.

At some point, the Penns purchased the three parcels from the University of Chicago. 2026 IL App (1st) 250920-U at ¶16. Once Fill became aware that the Penns were purchasing the three parcels, Fill requested to buy a portion of the land. Id. When the Penns declined, the Penns received a letter from Fill and Novak’s attorney asserting their ownership rights by adverse possession or prescriptive easement, primarily relating to one of the parcels, which was the first time that Fill and Novak had claimed any interest in the three parcels. Id.

The Penns then went on the offense, filing their complaint against Fill and Novak, alleging, in part, claims of trespass, private nuisance, and quiet title regarding the three parcels. 2026 IL App (1st) 250920-U at ¶¶2, 4. In response, Fill and Novak claimed rights to use or own portions of the three parcels through adverse possession and prescriptive easement, based on their long use of a driveway, parking area, paths, and gardens on the parcels. 2026 IL App (1st) 250920-U at ¶5.

During the bench trial, Fill testified that since 1985, he had maintained and added to the gardens that existed on one of the three parcels, mostly by weeding and removing invasive plants. 2026 IL App (1st) 250920-U at ¶10. Fill characterized the gardens as “a simple, beautiful, natural, not overly manicured space.” 2026 IL App (1st) 250920-U at ¶13. Fill also testified that a gravel driveway ran from a concrete pad on their land through the three parcels and connected to the asphalt driveway the Penns used to access the street. 2026 IL App (1st) 250920-U at ¶9. The concrete pad was regularly used by Fill and Novak, their family, and guests to park on their property. Id.

However, on cross examination, Fill acknowledged that he had his own separate paved driveway that gave him access to the street. 2026 IL App (1st) 250920-U at ¶11. Fill also acknowledged that when he moved into his residence in 1985, he knew that the three parcels were owned by the university, as the university had approached him about buying the parcels at that time. Id.

In 2016, after learning that the University was contemplating a sale of the three parcels to a developer, Fill drafted a letter addressed to the university, in which he indicated that he lived on a parcel adjacent to the lots owned by the university, which he sent to the Penns to review. 2026 IL App (1st) 250920-U at ¶¶12 – 13. In the letter, Fill described the Penns as “terrific neighbors” with whom they had jointly maintained the three parcels and proposed that the two couples jointly purchase the properties from the university. 2026 IL App (1st) 250920-U at ¶13. During cross examination, Fill acknowledged that nothing in the draft letter claimed that he had an ownership in any of the three parcels or a right to use the driveway on it and that he had asked the Penns if he could buy a portion of the parcels after they purchased them from the university. Id.

In contrast, the Penns testified that they had never seen either Fill or Novak maintaining the trees or plants in the three parcels except on two occasions after they had made their claim of adverse possession. 2026 IL App (1st) 250920-U at ¶17. The Penns also disputed Fill’s characterization of the three parcels as a “garden” but, rather, described it as merely “an overgrown, dense mess, essentially what looks like a jungle sort of wooded, forested area.” 2026 IL App (1st) 250920-U at ¶18. The Penns also testified that the area that they were claiming to be a “gravel” driveway was not actually gravel but rather merely a rutted and muddy area. 2026 IL App (1st) 250920-U at ¶17.

At the trial’s conclusion, the court found that Fill and Novak had failed to meet their burden of establishing the elements of adverse possession by clear and unequivocal evidence. 2026 IL App (1st) 250920-U at ¶19. Specifically, it found that the land was vacant and unenclosed and that, therefore, Fill and Novak’s use of the dirt or gravel driveway on it was presumed to be permissive rather than adverse. Id. The trial court also noted that Fill had acknowledged on several occasions that the university owned the three parcels and never asserted that he was the owner of it. Id. Their activities — driving over a dirt or gravel path, parking near their home, maintaining vegetation, and using walkways — did not clearly show a hostile claim of ownership. Id. Ultimately, the trial court ruled that the Penns had established their claims for trespass, private nuisance (due to the dumping of soil onto the Penns’ property when Fill and Novak excavated for their swimming pool), and quiet title. 2026 IL App (1st) 250920-U at ¶20. Apparently, the Penns were not the “terrific neighbors” Fill had been hoping for, and a timely appeal was filed.

The appellate court, in reviewing the lower court’s decision under a manifest weight of the evidence standard, upheld the trial court’s ruling. 2026 IL App (1st) 250920-U at ¶¶29. With respect to Fill and Novak’s claim of a prescriptive easement over the gravel driveway and the paved driveway utilized by the Penns, the appellate court held, as a matter of law, that use of vacant and unenclosed land is premised to be with permission of the owner and not adverse and that, therefore, there can be no prescriptive easement established. 2026 IL App (1st) 250920-U at ¶¶34, citing Parker v. Rosenberg, 317 Ill. 511, 148 N.E. 269, 272 (1925), and Dobrinsky v. Waddell, 233 Ill.App.3d 443, 599 N.E.2d 188, 190 – 191, 174 Ill.Dec. 642 (4th Dist. 1992). The fact that these driveways had been in use for decades and without a clear origin as to the use was irrelevant to Fill and Novak’s claim. 2026 IL App (1st) 250920-U at ¶¶30 – 34. Similarly, their claim that the parcels in question were improved by a “lush yard” of trees and gardens (and therefore were not vacant) was not borne out by the evidence. 2026 IL App (1st) 250920-U at ¶¶35 – 37.

As Fill and Novak’s use of the three parcels was not adverse, they also could not establish the “hostile or adverse” element required for their adverse possession claim. 2026 IL App (1st) 250920-U at ¶¶37 – 38, citing Miller v. Metropolitan Water Reclamation District of Greater Chicago, 374 Ill.App.3d 188, 870 N.E.2d 1040, 1041 – 1042, 312 Ill.Dec. 596 (1st Dist. 2007). “Where property is used with the permission of its owner, possession is not hostile or adverse.” 2026 IL App (1st) 250920-U at ¶39, citing 527 S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill.App.3d 42,932 N.E.2d 1127, 1134, 342 Ill.Dec. 666 (1st Dist. 2010). “Thus, in cases involving vacant and unenclosed land wherein the presumption of permissive use arises, ‘it must be clearly shown that the use of the land was adverse and not merely permissive.’ ” 2026 IL App (1st) 250920-U at ¶39, quoting Mann v. LaSalle National Bank, 205 Ill.App.3d 304, 562 N.E.2d 1033, 1037, 150 Ill.Dec. 230 (1st Dist. 1990). For the reasons described above, the appellate court agreed with the lower court that Fill and Novak had failed in their burden to establish their adverse possession claims. 2026 IL App (1st) 250920-U at ¶¶41 – 42.

Dane v. Burnell

Adam Dane and Dorile Burnell Sr. lived next to each other.2026 IL App (4th) 251384-U, ¶12. Dane had a concrete driveway that ran on the eastern part of his property and was well within his property lines, according to a 2022 survey. 2026 IL App (4th) 251384-U at ¶¶12, 22. Burnell, Dane’s neighbor to his east, had a split-rail fence in disrepair that traversed halfway down the border between their two properties. 2026 IL App (4th) 251384-U at ¶13. This fence was not in a straight line; it swerved in towards Burnell’s house. 2026 IL App (4th) 251384-U at ¶15. Traversing the other half of the border between the two properties was a chain-link fence that was more or less a continuation of the split-rail fence, and, like the split-rail fence, it was there when Dane bought the property. 2026 IL App (4th) 251384-U at ¶17.

In 2022, when Dane decided to build a fence, he ordered a survey to confirm boundaries. 2026 IL App (4th) 251384-U at ¶16. During his fieldwork, the surveyor planted iron monument pins in all four corners of Dane’s lot. 2026 IL App (4th) 251384-U at ¶20. Dane’s 2022 survey did not show any encroachment by the split-rail fence but did show that the chain-link fence encroached onto Dane’s property. 2026 IL App (4th) 251384-U at ¶17.

In 2023, Burnell decided to remove the split-rail fence and replace it with a wooden privacy fence that came right up to the driveway. 2026 IL App (4th) 251384-U at ¶18. According to a second survey ordered by Dane in 2024, both the privacy fence and chain-link fence encroached on his property. Id. Dane’s brother, who lived at the property, tried to stop the construction because of the encroachment but Burnell insisted that the fence company continue its work. 2026 IL App (4th) 251384-U at ¶¶24 – 28.

Given this impasse, Dane filed a complaint, alleging trespass and nuisance and seeking a permanent injunction, removal of the fence, and damages against Burnell. 2026 IL App (4th) 251384-U at ¶¶5 – 9. Burnell defended himself by arguing that he had acquired any disputed land through adverse possession. 2026 IL App (4th) 251384-U at ¶¶1, 29 – 33.

During the bench trial, Dane’s surveyor testified about both his 2022 and 2024 surveys. 2026 IL App (4th) 251384-U, ¶¶19 – 23. Both surveys confirmed an encroachment of the chain-link fence but did not indicate any encroachment in the area of the split-rail fence until it was replaced by the privacy fence. Id. The surveyor also testified that the deeply buried monument pin near the southernmost post of the new privacy fence had been removed by 2024 and was not recovered. Id. Similarly, Dane’s brother testified that the privacy fence was not in the exact location of the split-rail fence, claiming Burnell had removed the surveyor’s prior pin and intentionally altered the fence line onto Dane’s property. 2026 IL App (4th) 251384-U at ¶¶24 – 28.

In his defense, Burnell testified that the chain-link fence had been in place when he moved into the property in 1989 but that he erected the split-rail fence in 1993 after the concrete driveway on Dane’s property had been poured. 2026 IL App (4th) 251384-U at ¶30. Claiming that the split-rail fence had been constructed to follow a straight line from the chain-link fence, Burnell also acknowledged that because its posts had rotted and the ground had shifted, some of the rails leaned away from Dane’s property and towards his. 2026 IL App (4th) 251384-U at ¶¶30 – 31. Although Burnell admitted to removing the surveyor’s pin, he denied that, before replacing the split-rail fence with the new privacy fence, he moved the southernmost post of the split-rail fence closer to Dane’s property. Id. A long-standing neighbor also testified on behalf of Burnell, stating that the privacy fence was in the exact same place as the prior fencing. 2026 IL App (4th) 251384-U at ¶¶32 – 33.

While the trial court found that Burnell had adversely possessed the land beneath that portion of Dane’s property by the chain-link fence, it rejected his argument as to the privacy fence and ordered that front fence removed. 2026 IL App (4th) 251384-U at ¶¶35 – 36. Burnell filed a timely appeal, challenging the ruling on the privacy fence. 2026 IL App (4th) 251384-U at ¶¶37 – 38.

The appellate court, in reviewing the lower court’s decision under a manifest weight of the evidence standard, upheld the trial court’s ruling. 2026 IL App (4th) 251384-U at ¶¶46 – 48. It is well settled in Illinois that in order to establish title over a property by adverse possession, a claimant must prove possession of the disputed property 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” for a period of at least 20 years. 2026 IL App (4th) 251384-U at ¶40, quoting Joiner v. Janssen, 85 Ill.2d 74, 421 N.E.2d 170, 174, 51 Ill.Dec. 662 (1981). Additionally, “the claimant must also prove ‘by clear and convincing evidence the exact location of the boundary line to which [the claimant] claim[s].’ ” 2026 IL App (4th) 251384-U at ¶40, quoting Brandhorst v. Johnson, 2014 IL App (4th) 130923, ¶37, 12 N.E.3d 198, 382 Ill.Dec. 198 (Brandhorst court quoting Schwartz v. Piper, 4 Ill.2d 488, 122 N.E.2d 535, 539 (1954)).

While Burnell rested his claim solely on the undisputed fact that the split-rail fence had been in existence for over 20 years, it was not clear that all of the split-rail fence, or even some of it, had been on Dane’s property for 20 years. 2026 IL App (4th) 251384-U, ¶¶41 – 45. Indeed, photographs admitted at trial contradicted testimony that the privacy fence stood in the same exact location as the split-rail fence. Id. The appellate court concluded that “[b]ecause the claim of adverse possession is for inches of land, exactitude matters, and approximation will not suffice.” 2026 IL App (4th) 251384-U at ¶45. As a result, trial court’s view of the evidence was reasonable and, therefore, its ruling was not against the manifest weight of the evidence. Id.

For more information about real estate law, see COMMERCIAL REAL ESTATE: PROPERTY-RELATED ISSUES (IICLE^®, 2025). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Genevieve M. Daniels, Genevieve M. Daniels, P.C.

Genevieve M. Daniels, a versatile litigator and transactional attorney, specializes in commercial, employment, and real estate law. She offers comprehensive legal services, including real estate transactions, employment law compliance, and dispute resolution. Genevieve's unique experience allows her to provide clients with strategic insights and effective advocacy. She is also an active presenter, arts supporter, and passionate about Persian cooking and adventure travel.

In Subway v. Illinois Workers' Compensation Commission, 2026 IL App (5th) 250429WC, the Illinois Appellate Court underscored the decisive role of de novo review in workers' compensation appeals by reversing an award of death benefits after concluding that the Illinois Workers' Compensation Commission applied the wrong legal standard to a traveling employee claim. The ruling serves as a pointed reminder that while the Commission is afforded deference on its factual findings, no such deference applies when the issue is whether the Commission applied the correct legal test. 2026 IL App (5th) 250429WC at ¶12.

The case arose from a fatal motor vehicle accident involving a Subway employee who was transporting supplies between store locations. The claimant, acting on behalf of the decedent’s minor child, sought benefits under the Illinois Workers’ Compensation Act, 820 ILCS 305/1, et seq. The record included evidence of possible cell phone use, speeding, and THC in the decedent’s system, alongside expert testimony offered by the claimant disputing any reliable conclusion of impairment. 2026 IL App (5th) 250429WC at ¶¶2 – 4.

At arbitration, the parties stipulated that the decedent qualified as a traveling employee. 2026 IL App (5th) 250429WC at ¶2. That classification is critical because it triggers a distinct legal framework: a traveling employee is generally considered within the course of employment for the duration of the trip, but compensability turns on whether the employee’s conduct at the time of injury was reasonable and foreseeable. 2026 IL App (5th) 250429WC at ¶11.

The arbitrator’s decision focused on whether the decedent engaged in conduct that was intentional or demonstrated a wanton disregard for safety. Finding no such conduct, the arbitrator awarded benefits. 2026 IL App (5th) 250429WC at ¶ 6. The Commission affirmed and adopted that reasoning in full, and the circuit court confirmed the Commission. 2026 IL App (5th) 250429WC at ¶¶7 – 8.

On appeal, the employer challenged not the factual findings, but the legal standard applied and argued for a de novo review of the Commission’s decision.

The appellate court began by emphasizing that determining what elements a claimant must prove is a question of law, subject to de novo review. 2026 IL App (5th) 250429WC at ¶12. Likewise, identifying whether the Commission applied the correct legal test requires the reviewing court to independently determine the governing standard — again, without deference to the Commission. Id.

Rather than asking whether the Commission’s findings were against the manifest weight of the evidence — a deferential standard typically applied to factual determinations — the court instead conducted an independent evaluation of the governing law for travelling employees. In doing so, the court concluded that the Commission had applied the wrong framework altogether.

Specifically, the arbitrator — and by adoption, the Commission — relied on a misconduct-based standard that asks whether the employee acted intentionally or with wanton disregard for the consequences. 2026 IL App (5th) 250429WC at ¶¶14 – 15. That test, however, does not govern traveling employee claims. Illinois precedent makes clear that the proper inquiry is whether the employee’s conduct was reasonable and foreseeable from the employer’s perspective. 2026 IL App (5th) 250429WC at ¶¶11, 13.

As the court explained, the misconduct framework effectively allows recovery as long as the employee’s actions do not rise to the level of intentional or reckless wrongdoing. By contrast, the traveling employee doctrine imposes a distinct inquiry: whether the conduct was so unreasonable or unforeseeable that it falls outside the scope of employment. 2026 IL App (5th) 250429WC at ¶16.

Crucially, the appellate court made clear that even if the Commission’s conclusion under the incorrect standard was factually sound, it could not stand. The court further noted that the precedent cases cited by the Commission were rejected later by the court in subsequent cases. The court acknowledged that the finding — that the decedent did not act with wanton disregard — “may well be correct,” but it emphasized that such a finding does not answer the relevant question for a travelling employee. Id.

Because the error was legal, not factual, the court did not defer to the Commission. Instead, applying de novo review, it held that the decision was contrary to law and therefore subject to reversal. 2026 IL App (5th) 250429WC at ¶¶12, 17.

Although the appellate court identified the correct legal standard, it declined to apply that standard to the facts in the first instance. Whether the decedent’s conduct was reasonable and foreseeable remains a question of fact within the Commission’s authority. 2026 IL App (5th) 250429WC at ¶11. Accordingly, the appellate court reversed the circuit court, set aside the Commission’s decision, and remanded for reconsideration by the Commission under the proper legal framework. 2026 IL App (5th) 250429WC at ¶¶18 – 19.

The decision highlights a critical appellate dynamic: that deference to the Commission has limits. While factual findings by the Commission are reviewed under the manifest weight standard, threshold legal questions, such as the elements of a claim or the applicable test, are reviewed independently.

For practitioners, the implication is clear that the standard of review can determine the outcome. In this case, de novo review was not just a procedural detail — it was the mechanism that compelled reversal. In cases involving traveling employees, particular care must be taken to ensure that the correct legal test is applied, i.e., whether the conduct of the travelling employee was reasonable and foreseeable.

One aspect of the opinion that practitioners may also find notable is what the opinion does not specifically address. Although the record reflected that THC was detected in the decedent's system, the court did not discuss the rebuttable presumption contained in §11 of the Illinois Workers' Compensation Act, 820 ILCS 305/11. Under §11, a positive test for cannabis, a controlled substance, or an intoxicating compound may give rise to a rebuttable presumption that the employee's intoxication was the proximate cause of the injury. In this case, the opinion appears to reference only expert testimony offered by the claimant rebutting the presumption that the decedent was impaired by the presence of THC. The absence of any substantive discussion of §11 suggests that the statutory presumption either was not at issue on appeal or was otherwise not material to the court's analysis, which was confined to the Commission's application of the incorrect legal standard governing traveling employee claims. On remand, however, if §11 was properly raised at trial, the Commission may be required to consider not only whether the claimant has rebutted the statutory presumption of intoxication as a proximate cause of the accident, but also whether the decedent's conduct was reasonable and foreseeable under the traveling employee doctrine. Those inquiries are distinct, and the resolution of one does not necessarily resolve the other.

For more information about workers’ compensation, see WORKERS’ COMPENSATION PRACTICE (IICLE^®, 2026). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

Kisa P. Sthankiya, Rusin Law, Chicago

Kisa P. Sthankiya is a Partner at Rusin Law, Ltd., specializing in workers' compensation defense. With extensive experience in litigating workers' compensation claims, she has achieved successful outcomes at various court levels. Recognized as an “Emerging Lawyer” and a “Rising Star,” Kisa has also contributed as an educator and author in her field. She holds a B.S. from Northwestern University and a J.D. from Loyola University Chicago School of Law. Outside of work, Kisa enjoys fitness, traveling, and reading.