In re Estate of Cargola
2017 IL App (1st) 151823
| Ill. App. Ct. | 2017Background
- Decedent Anne Cargola died intestate in 2007; her two daughters are Donna Knorrek (appellant) and Diane Briese (respondent). The dispute concerns real property at 1 N. Braintree Ave., Schaumburg, purchased in 1991 with title and mortgage in Cargola’s name.
- Knorrek alleges she provided the down payment, has lived at and paid mortgage, taxes, utilities, and other expenses on the property since 1991, and reimbursed Cargola for any payments. Cargola never resided there.
- Knorrek and Cargola purportedly agreed that Cargola would hold title while Knorrek would be the true owner/possessor (an arrangement made during Knorrek’s divorce).
- In 2001 and 2003 refinances, both Knorrek and Cargola were listed as borrowers on the mortgage note.
- Knorrek sued to quiet title, alleging adverse possession (20+ years: 1991–2014). The circuit court dismissed Count II (adverse possession) on a section 2-615 motion; dismissal was appealed and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Knorrek sufficiently pleaded adverse possession of the property | Knorrek claimed 20+ years of actual, open, continuous, exclusive possession hostile to Cargola’s title; Cargola never gave permission | Briese argued Knorrek pled an express agreement and permissive use, negating hostility required for adverse possession | Court held dismissal proper: pleaded facts show permissive occupancy/consent, so hostility element fails |
Key Cases Cited
- Khan v. Deutsche Bank AG, 2012 IL 112219 (legal standard for reviewing a section 2-615 dismissal)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) (pleadings reviewed de novo; accept well-pleaded facts)
- Miller v. Metropolitan Water Reclamation District of Greater Chicago, 374 Ill. App. 3d 188 (2007) (elements required for adverse possession)
- General Iron Industries, Inc. v. A. Finkl & Sons Co., 292 Ill. App. 3d 439 (1997) (enumeration of adverse possession elements)
- Mann v. La Salle National Bank, 205 Ill. App. 3d 304 (1990) (hostility does not require ill will; must be inconsistent with owner’s title)
- Thorman v. Cross, 185 Ill. App. 3d 590 (1989) (use of land must be clearly adverse and not permissive)
- 527 S. Clinton, LLC v. Westloop Equities, LLC, 403 Ill. App. 3d 42 (2010) (possession with owner’s permission is not hostile)
- Morris v. Humphrey, 146 Ill. App. 3d 612 (1986) (permissive use cannot ripen into adverse possession)