The authorities we reviewed indicate that a mortgage does not convey control over the property to the mortgagee. See, e.g. , M. Ecker & Co. v. LaSalle National Bank , 268 Ill.App.3d 874, 206 Ill.Dec. 330, 645 N.E.2d 335 (1994). The conspicuous lack of reference by authorities to a mortgage as a beneficial interest in real property, the fact that the listed beneficial interests all indicate a degree of ownership control, and the fact that a mortgage does not grant control over property leads this court to the conclusion that a mortgage is not a beneficial interest in real property.
Most lien theory jurisdictions do not recognize absolute assignments of rent, in which the assignor presently sells and disposes of all of its title and interest in a property's rents and profits. M. Ecker & Co. v. LaSalle National Bank, 268 Ill.App.3d 874, 879 (1994). ¶ 26 Illinois requires mortgagees to take possession of the property before collecting rents, which reflects the public policy that "seeks to prevent mortgagees from stripping the rents from the property and leaving the mortgagor and tenants without resources for maintenance or repair."
“Under section 1 of the [Mechanics Lien] Act, a mechanic's lien extends to an estate in fee, for life, for years, or any other estate or any right of redemption, or other interest which the owner may have at the time of making such contract or may subsequently acquire.” M. Ecker & Co. v. La Salle National Bank, 268 Ill.App.3d 874, 878, 206 Ill.Dec. 330, 645 N.E.2d 335, 339 (1994) (citing 770 ILCS 60/1 (West 1992)). Thus, under the Mechanics Lien Act, the term “owner” means “any person with an estate, right of redemption or other interest in the land.”
Within the context of the Act, an owner refers to any person with an estate, right of redemption or other interest in the land. 770 ILCS 60/1 (West 2004); M. Ecker Co. v. La Salle National Bank, 268 Ill. App. 3d 874, 878 (1994). This definition of owner has been extended to a beneficiary under a land trust (M. Ecker Co., 268 Ill. App. 3d at 878) and a lessee ( Slacken v. Isenberg, 288 Ill. 589 (1919)).
Outside of bankruptcy, an assignment of rents gives the mortgagee an interest in rental income collected after the assignment is enforced by acquiring possession of the mortgaged real estate either through foreclosure or the appointment of a receiver. W. Bend Mut. Ins. Co. v. Belmont State Corp., 712 F.3d 1030, 1035 (7th Cir. 2013); M. Ecker & Co. v. LaSalle Nat'l Bank, 645 N.E.2d 335, 340 (Ill. App. Ct. 1994). "After default if a mortgagee takes action and a deficiency is apparent or develops, he may obtain a first claim on the rents. If he does not take action, however, he normally has no greater interest in the rents . . . than a general creditor.
M. Ecker & Co. v. La SalleNational Bank, 268 Ill. App. 3d 874, 878 (1994). An owner holds some interest in the land, either an equitable or a legal interest.
Because we have already concluded that the trial court's agency finding was not erroneous, we need not address its additional finding that the Youngs knowingly authorized CES's work. However, because the issue is easily resolved and, again, because the trial court made this additional finding, we choose to address it. ¶ 125 The words "knowingly permit" mean being aware of and consenting to the improvements (see M. Ecker & Co. v. LaSalle National Bank, 268 Ill. App. 3d 874, 881 (1994)), or failing to protest and accepting the benefits (see Fettes, 46 Ill. App. 2d at 236). Cases have found that owners knowingly permitted work, for example, where they lived close to the subject property (Young v. Bergner, 243 Ill. App. 473, 476 (1927) (joint owners lived within 200 yards of worksite)), or where the owner's son managed the premises (was "general agent") and knew improvements were being contracted for (Mutual Construction Co. v. Baker, 237 Ill. App. 596, 603 (1925)). ¶ 126 Here, the trial court found that Young was aware of and did not object to CES's work (i.e., to make improvements necessary for the projects' development). It noted that it would be "naïve" to determine that Dr. Young expected the projects to become development-ready and to be taken down in phases by Eagle without completion of pre-development work.
The decision to permit or deny an amendment rests within the sound discretion of the circuit court and will not be disturbed on review absent a manifest abuse of that discretion. Loyola Academy v. SS Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992). Among the factors to be considered in deciding that discretion was properly exercised are whether (1) the proposed amendment would cure the defective pleading; (2) it would cause prejudice or surprise to the other party; (3) it was timely sought; and (4) previous opportunities to amend the pleadings could be identified. M. Ecker Co. v. La Salle National Bank, 268 Ill. App. 3d 874, 881 (1994). In bringing this belated motion, defendant merely sought to recast its counterclaim with facts previously known in a transparent attempt to avoid the unfavorable judgment that was entered based on its admissions.
"This assignment is intended to be supplementary to and not in substitution for or in of any assignment of rents to secure said indebtedness contained in the mortgage or any other document." This court construed almost identical language in M. Ecker Co. v. La Salle National Bank (1994), 268 Ill. App.3d 874, 880, 645 N.E.2d 335. This kind of assignment, said the court, is not absolute. It is a grant of a lien as "additional security for the mortgage loan."