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Assignments of Rents: Lenders Beware!

assignment of rents illinois

Contributed by    R. Kymn Harp   author of   Intent to Prosper  and attorney at  RSP Law , Chicago, Illinois.

assignment of rents illinois

Assignments of Rents. Here’s a topic that doesn’t pop up in light conversation very often.

Assignments of Rents. Virtually every commercial real estate financing includes an assignment of rents – either as a separate instrument, or in the mortgage, or both. We think we know what it means, and what protection it provides. But do we?

Assignments of Rents. What could assignments of rents possibly have to do with Pink Floyd?

It has been suggested on occasion, only half-jokingly, that I don’t like lenders. That is really not true. Lenders are valuable participants in the commercial real estate market. Without lenders, few of my clients could buy, develop or own commercial real estate projects. Commercial lenders provide valuable liquidity to the market (usually) and allow commercial real estate developers and investors to leverage available resources.

For years, I have described commercial lenders and their borrows as “friendly adversaries”. Friendly, because they need each other. Adversarial, because their interests are not always completely aligned. They are each necessary complements to the other.

In good times, all typically works well, with lenders and borrowers sharing a common goal -financing a viable commercial project that makes each of them an attractive return.

In troubled times, like we have seen over the past several years, lenders and borrowers can find themselves at odds. The current economic downturn has been particularly brutal because the commercial real estate market has seen an unprecedented collapse in property values and tenant rental revenue. Lenders often blame the borrower, because the loan has ended up in default. Realistically, for most commercial real estate borrowers, there is little if anything they could have done to prevent a default, save not acquiring and financing the project in the first place – which, in hindsight, most borrows wish, as much as most lenders wish, had been the case. But neither borrowers nor lenders foresaw the dramatic financial debacle we have been experiencing since 2008.

Still, we are where we are. Commercial real estate borrowers are holding projects with substantially lower values than existed five or six years ago, and may be in default of their mortgage loans. Not unreasonably, commercial real estate lenders want their money back.

Assuming the lender has properly documented and administered its commercial real estate loan, the lender should be in the driver’s seat. All else being equal, with a properly documented and administered commercial loan, a lender has a powerful arsenal of enforcement tools at its disposal.

That said, lenders must still comply with the law. Assuming they can pass the test of having a properly documented loan that has been properly administered in a manner that does not violate the rights and interests of the borrower, the mere fact that a lender is owed millions of dollars and has a secured interest in the borrowers project (including, yes, an assignment of rents) does not mean a lender can do whatever it wishes to collect its loan without regard to applicable law.

Do I dislike lenders? No. What I abhor are lenders and their attorneys who ignore the law – which already wildly favors lenders – and take steps in direct contravention of the law to collect their loans. With the legal enforcement deck already stacked in their favor, there is no excuse for lenders to overreach and violate the law in their enforcement efforts. When they do, they should fully expect that I will object on behalf of my borrower clients and seek to hold them accountable. We will pursue compensatory and punitive damages, when appropriate, petition to have their unlawful actions reversed, and will press to have their equitable remedies, including their equitable remedy of foreclosure, curtailed or barred.

Follow the law, and a lender should expect to get what the law provides. Violate the law, and a lender should expect to suffer the consequences.

Enforcement of an Assignment of Rents is a case in point. The law in Illinois, and in most other states, is crystal clear. It is an extension of common law doctrine that has developed over centuries. If a lender is going to require an Assignment of Rents, and plans to enforce the Assignment of Rents, it is incumbent upon the lender to know the law governing Assignments of Rents.

The leading case in Illinois on the effect and enforceability of an Assignment of Rents provision, whether in the mortgage or in a separate document, is Comerica Bank-Illinois vs. Harris Bank Hinsdale, et al, 284 Ill.App.3d 1030, 220 Ill.Dec. 468, 673 N.E.2d 380 (1st. Dist. 1996).

The Comerica case involved a dispute between a property owner/mortgagor and a first and second mortgagee as to who was entitled to collect the rents from shopping center tenants after the mortgagor’s default in payment of the a first mortgage and second mortgage.

The assignment of rents provision in the mortgage provided that, after a default, Comerica could collect rents from the property without taking possession of the property, and without exercising other options under the mortgage.

Comerica, the first mortgagee, sent a notice to tenants that the mortgagor was in default under its mortgage and that under the assignment of rents provision in its mortgage Comerica was entitled to collect the rents. Thereupon Comerica began collecting rents.

The property owner/mortgagor and the second mortgagee objected.

In summary, the Comerica court held as follows:

1. At common law, it was strictly held that the mortgagee must take actual possession before being entitled to rents.

2. A clause in a real estate mortgage pledging rents and profits creates an equitable lien upon such rents and profits of the land, which may be enforced by the mortgagee upon default by taking possession of the mortgaged property.

3. The possession requirement reflects the public policy in Illinois which seeks to prevent mortgagees from stripping the rents from the property and leaving the mortgagor and the tenants without resources for maintenance and repair.

4. Courts will not enforce private agreements that are contrary to public policy.

5. “To obtain the benefits of possession in the form of rents, the mortgagee must also accept the burdens associated with possession – the responsibilities and potential liability that follow whenever a mortgage goes into default. The mortgagee’s right to rents, then, is not automatic but arises only when the mortgagee has affirmatively sought possession with its attendant benefits and burdens”.

6. A mortgagee may be entitled to rents once a receiver is appointed as an incidence of being in “constructive possession”, since having a receiver appointed constitutes affirmative action by the mortgagee, under court authorization.

7. In a foreclosure action, the mortgagee is not entitled to rents until judgment has actually been entered unless the mortgage agreement permits the mortgagee to obtain prejudgment possession.

8. A mere filing of a foreclosure action or request for appointment of a receiver is not sufficient to trigger a mortgagee’s right to collect rents. The receiver must actually be appointed. “The mortgagee is not entitled to the rents until the mortgagee or a receiver appointed on the mortgagee’s behalf has taken actual possession of the real estate after default.”

9. Where a mortgagee does not obtain prejudgment possession of the property (through a court appointed receiver or as a mortgagee in possession), and where rents are collected during a time while the mortgagor remained in possession of the property, the rents so collected belong to the mortgagor.

In making its ruling, the Comerica court relied on Illinois case law, but, noting that the U.S. Supreme Court has required bankruptcy courts to apply State law in determining a mortgagee’s entitlement to rents [Butner v United States, 440 U.S. 48, 99 S. Ct. 914 (1979)], the Comerica court also found relevant bankruptcy decisions and Federal case law to be thorough and persuasive. Among other cases, the Comerica court found persuasive the bankruptcy court opinion in In re. J.D. Monarch Development Co. 153 B.R.829 (Bankr. S.D.Ill 1993).

In the case of In re. J.D. Monarch Development Co. 153 B.R.829 (Bankr. S.D.Ill 1993), the bankruptcy court, applying Illinois law, held as follows:

1. Illinois law recognizes the validity of an assignment of rents included in a mortgage of real estate.

2. Such an assignment creates a security interest in rents that is perfected as to third parties upon recording the mortgage in the real estate records.

3. As between the mortgagee and the mortgagor, however, the mortgagee is not entitled to the rents until the mortgagee or a receiver appointed on the mortgagee’s behalf has taken actual possession of the real estate after default.

4. This is so even though the mortgage instrument contains a specific pledge of the rents.

5. The mortgage does not create a lien upon rents to the same extent that it creates a lien upon the land. Rather, the inclusion of rents in a mortgage merely gives the mortgagee the right to collect rents as an incident of possession of the mortgaged property, and the mortgagee, after default, must take affirmative action to be placed in possession of the property to receive such income.

6. The requirement that a mortgagee enforce its lien on rents by possession of the real estate renders an assignment of rents different from security interests in other property.

7. Typically, a perfected lien gives the creditor an interest in a specific piece of property, whereas an assignment of rents allows the mortgagee to collect rents that come due after the mortgagee takes control of the property. To obtain the benefits of possession in the form of rents, the mortgagee must also accept the burdens associated with possession.

Notwithstanding the clarity of the law on this topic, there are lenders, and lenders’ counsel, and occasionally receivers, who ignore the law or choose to intentionally violate the law by seeking to take the benefits of rental projects by control of rents without accepting the burdens that come with possession. They want the good, but not the bad. The dessert, but not the main course. The pudding, but not the meat.

[Hence my opening reference to Pink Floyd: “How can you have any pudding, if you don’t eat your meat?” Even Pink Floyd understood the public policy applicable to assignments of rents!]

So what is the property owning borrower’s remedy for a lender violating the law by exercising dominion or control over rents payable to the borrower without first obtaining possession of the project?

How about conversion/civil theft? Let’s check-off the elements:

A proper complaint for conversion must allege the four elements of a cause of action for conversion:

(1) an unauthorized and wrongful assumption of control, dominion, or ownership by a lender over a borrower’s personalty (identifiable “rents” count); [ √ check]

(2) borrower’s right to the rents; [ √ check]

(3) borrower’s right to immediate possession of the rents; [ √ check]

(4) borrowers’ demand for possession of the rents. [easy to do: √ check]

“Punitive damages” are available where a defendant willfully or wantonly converts the property of another. Is there any legitimate doubt – especially in Illinois – especially since the court’s clear and unequivocal Comerica decision in 1996 – that a lender who unilaterally converts the rents of a borrower to its own use without taking lawful possession of the rental project does so “willfully or wantonly” in disregard of the project owners’ rights to those rents?

If a lender is intentionally violating the law as it relates to the security for its loan, particularly as it relates to an assignment of rents executed within or in conjunction with a mortgage debt, might the lender also be guilty of “unclean hands” relative to the mortgage security, with the result that a lender might be equitably barred from foreclosing its mortgage in a court of equity? Stay tuned…

The point is not that I wish to prevent a lender from enforcing its legal rights under its loan documents. The point is, a lender must enforce its legal rights within the bounds of the law, just like everyone else.

I didn’t make the rules, but I will enforce them. If a lender insists on violating the law vis-à-vis one of my borrower clients, it should expect to suffer the consequences.

This is not a threat – it is a promise.

Thanks for listening. Kymn

R. Kymn Harp is a seasoned attorney and trusted advisor to commercial real estate investors, lenders, and developers. He is a partner in the Chicago, Illinois law firm of Robbins, Salomon & Patt, Ltd. and may be reached at (312) 456-0378 or  [email protected] . For more information, visit his website  http://www.rsplaw.com

Article Source:  http://EzineArticles.com/?expert=R._Kymn_Harp

assignment of rents illinois

R. Kymn Harp

R. Kymn Harp is a recognized thought leader and resourceful advocate for commercial real estate investment and development in Illinois, Indiana and throughout the USA. Kymn is a solutions-oriented attorney who takes a practical approach to all real estate and business transactions. He is a frequent speaker at CE seminars, and is a widely published author on commercial real estate legal topics.

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Assignment of Leases and Rents (Commercial Real Estate Loan) (Pro-Lender) (IL) | Practical Law

Practical Law Home

Assignment of Leases and Rents (Commercial Real Estate Loan) (Pro-Lender) (IL)

Practical law standard document w-038-0935  (approx. 25 pages).

Illinois court holds that a mortgagee can execute on an assignment of rents provision without taking possession of property if the mortgagor agrees

Update filed as mortgages · jun 7, 2017.

An Illinois appellate court construed the applicable statute on assignment of rents and concluded that a mortgagee can enforce an assignment of rents provision without taking actual or constructive possession of the property if the mortgagee and mortgagor agree by, for example, a forbearance agreement.

In BMO Harris Bank N.A. v. Joe Contarino, Inc ., 2017 IL App (2d) 160371 (Mar. 23, 2017) the judgment creditor (“Creditor”) obtained a $1.5 million judgment against the mortgagor and a guarantor.

In supplementary proceedings, Creditor issued a third-party citation upon a property management company that collected rents for different properties owned by the mortgagor. Mortgagor’s other creditors (“Adverse Claimants”) intervened in the citation proceedings to assert claims on those rents. They claimed that their interests were superior to the Creditor’s interest by virtue of the assignment-of-rents provisions in their mortgages on the other properties and separate forbearance agreements with the mortgagor.

The trial court found for the Adverse Claimants holding that the forbearance agreements were enforceable contract modifications which predated Creditor’s judgment and the citations. Creditor appealed arguing that it had a perfected judgment on the funds and that the Adverse Claimants’ rights under the mortgage and forbearance agreements are immaterial because they did not also obtain possession of the property through foreclosure.

The appellate court affirmed. It noted that the operative statute on assignment of rents, 765 ILCS 5/31.5, distinguishes between perfection and enforcement of assignment of rents provisions. Section 31.5 unambiguously provides that an assignment of rents is perfected upon recording. As between assignor (such as the Creditor) and an assignee (Adverse Claimants), the mere recording does not affect who is entitled to the rents until the assignee enforces the assignment “under applicable law” unless the parties agree otherwise. Taking possession of the property is therefore excused if the parties agreed that it was not necessary. In the case at bar, the assignments were properly enforced when, by electing to agree “otherwise” and enforce them other than under applicable law, the parties entered into the forbearance agreements to transmit the rents directly to Adverse Claimants.

The court acknowledged Illinois public policy that assignment of rents provisions will allow creditors to reach the rents so long as they take possession thereby ensuring that a mortgagee’s interests are protected, while also ensuring proper maintenance of the properties. The forbearance agreements at issue allowed for the expenses of maintenance, management, and repair of the properties to be paid from the rents. Thus, the public policy requiring a mortgagee to take actual or constructive possession of the property through court action is not implicated.

James Noonan

James Noonan

Jim is a founding partner of Noonan & Lieberman. Jim has more than 25 years of experience in civil litigation on behalf of creditors, servicers, business and real estate owners.

James Noonan

Written by James Noonan

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  • Illinois Assignment of Lease and Rent from Borrower to Lender

Assignment Of Leases And Rents Form

Description, related landlord tenant forms.

Illinois Landlord Tenant Forms Package

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Form rating, form popularity, can we take loan on leased property.

What is Loan Against Leased Property ? Loan Against Leased Property or Lease Rental Discounting (LRD) is a term loan provided against receipts derived from lease contracts with tenants. The loan is provided to the lessor based on the discounted value of the rentals as well as the inherent property value.

Who benefits from the assignment of rents clause?

Sometimes called Assignment of Leases, Rents and Profits or simply Assignment of Rents, this is a document attached to a mortgage loan agreement which entitles the lender to any income (from leases, rents, etc.) derived from the property once the owner defaults on the loan.

What is the importance of an assignment of leases and rents to a lender?

For commercial lending purposes, an assignment of leases assigns the debtor's rights, as landlord under a lease or leases, to the creditor for the collection of rent as additional security for a debt or other obligation.

Can a lease be used as collateral?

A leasehold mortgage is possible when a lien is placed on the tenant's interest with the lease, and it is used as collateral for the loan the individual obtained.Generally, this occurs so that the leaseholder benefits through financing a construction or to renovate the property.

Can you take a loan out on a leased car?

A lease buyout loan is financing for buying the car you leased, if the leasing company allows. Although a lease buyout loan could help you own a car you already know and love, these loans tend to come with higher interest rates than new car loans. And not all lenders offer them, so your options could be limited.

How does an assignment of rents work?

Definition of "Assignment of Rent" An Assignment of Rent is a document needed when a mortgaged property is being rented. It enables the lender to collect the rent if the mortgage is defaulted upon.

What is a collateral assignment of lease?

COLLATERAL ASSIGNMENTS. OF LEASE. Separate from a traditional as- signment of lease is a collateral assignment and assumption of lease whereby a landlord and ten- ant agree that a certain third party has a security interest in the lease pursuant to a separate agreement.

Can leasehold improvements be used as collateral?

Accordingly, the real collateral value in a leasehold improvement loan could be said to be in the increased value of the leased premises themselves. The SBA has addressed this issue by requiring lenders to secure loans that finance leasehold improvements with, among other things, a collateral assignment of the lease.

Is a mortgage an assignment?

What does Assignment of Mortgage mean: The most common example of an Assignment of Mortgage is when a mortgage lender transfers/sells the mortgage to another lender. This can be done more than once until the balance is paid.If a borrower transfers the mortgage to another borrower, this is called an assumed mortgage.

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Illinois Assignment of Lease by Landlord

Picture of Illinois Assignment of Lease by Landlord

Illinois landlords, assign your tenant's lease to a new owner of the property with this easy-to-use Assignment of Lease by Landlord form.

  • The Assignment is between the current landlord, the purchaser of the property (new landlord) and the tenant.
  • The current landlord assigns the lease to the new landlord, and the tenant covenants to pay rent to the new owner and continue to perform the tenant's obligations under the lease.
  • The current landlord and the purchaser agree to indemnify each other against any claims or actions arising out of any breach of the terms of the assignment.
  • This form can be used for either commercial or residential rental properties.
  • Available in MS Word format.
  • Intended to be used only in the State of Illinois.

assignment of rents illinois

Illinois Notice of Sale of Rental Premises

Picture of Illinois 10 Day Eviction Notice

Illinois 10 Day Eviction Notice

Illinois landlords, do you need to evict a tenant for cause serve the tenant with this 10 day eviction notice..

  • The Notice informs the tenant of the nature of the lease violation(s), and that the tenancy will be terminated 10 days after the date the Notice is served.
  • The form includes an Affidavit and Proof of Service , which must be sworn by the person who served the Notice.
  • This is a reusable legal form which can be used as often as you require.

Picture of Illinois 30 Day Termination Notice

Illinois 30 Day Termination Notice

Il landlords, terminate a tenant's rental agreement with this illinois 30 day termination notice..

  • The Notice must be served on the tenant in accordance with State landlord tenant laws.
  • The Notice informs the tenant that the tenancy will be terminated on the date specified in the notice, which must be at least 30 days prior to the end of the monthly lease term.
  • An Affidavit and Service of Notice is included to record the details of how the Notice was served on the tenant.
  • This is a reusable legal form. Buy, download, use as often as you require.

Picture of Illinois 5 Day Notice for Unpaid Rent

Illinois 5 Day Notice for Unpaid Rent

Picture of Illinois Lease Co-Signer Agreement

Illinois Lease Co-Signer Agreement

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    Description. Agreement for assignment by Borrower to Lender of leases and rent therefrom in order to repay Borrower's debt to Lender. The assignee agrees to

  12. Assignment of Leases and Rents from Borrower to Lender

    Assignment of Leases and Rents from Borrower to Lender, concerning the Decatur, Illinois Property;. 7. Amended Assignment of Leases and Rents from Borrower

  13. 1030 W.North Ave, Bldg., LLC v. The Firm

    assignment of rents constitutes an absolute assignment and not an assignment for ... of-Rents Provisions in Illinois, 86 Ill. B.J. 436, 439 (1998)

  14. Illinois Assignment of Lease by Landlord

    Illinois landlords, assign your tenant's lease to a new owner of the property with this easy-to-use Assignment of Lease by Landlord form.