{ "id": 3241946, "name": "In re APPLICATION OF EDWARD J. ROSEWELL, County Treasurer.-(EDWARD J. ROSEWELL, Collector-Appellant, v. THE CITY OF CHICAGO, Objector-Appellee.)", "name_abbreviation": "Rosewell v. City of Chicago", "decision_date": "1979-03-06", "docket_number": "No. 77-1277", "first_page": "996", "last_page": "1003", "citations": [ { "type": "official", "cite": "69 Ill. App. 3d 996" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "289 N.E.2d 431", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2924443 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0001-01" ] }, { "cite": "63 N.W. 704", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "95 Iowa 287", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2088725 ], "opinion_index": 0, "case_paths": [ "/iowa/95/0287-01" ] }, { "cite": "92 N.E. 525", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1895, "opinion_index": 0 }, { "cite": "245 Ill. 598", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3407561 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/ill/245/0598-01" ] }, { "cite": "20 N.E.2d 74", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1910, "opinion_index": 0 }, { "cite": "371 Ill. 174", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2521600 ], "year": 1910, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill/371/0174-01" ] }, { "cite": "128 N.E.2d 883", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. 2d 365", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708300 ], "pin_cites": [ { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/6/0365-01" ] }, { "cite": "152 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill. App. 2d 462", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5186885 ], "pin_cites": [ { "page": "480-81" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/18/0462-01" ] }, { "cite": "250 Ill. App. 209", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3302340 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-app/250/0209-01" ] }, { "cite": "124 Mass. 123", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 733336 ], "opinion_index": 0, "case_paths": [ "/mass/124/0123-01" ] }, { "cite": "50 Ill. App. 290", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5123794 ], "opinion_index": 0, "case_paths": [ "/ill-app/50/0290-01" ] }, { "cite": "21 Ill. 200", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599797 ], "opinion_index": 0, "case_paths": [ "/ill/21/0200-01" ] }, { "cite": "55 Ill. App. 463", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5091625 ], "opinion_index": 0, "case_paths": [ "/ill-app/55/0463-01" ] }, { "cite": "129 N.E. 809", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "296 Ill. 346", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5055314 ], "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/ill/296/0346-01" ] } ], "analysis": { "cardinality": 847, "char_count": 17366, "ocr_confidence": 0.849, "pagerank": { "raw": 2.202240719839364e-07, "percentile": 0.7752946214238745 }, "sha256": "6d877b88c624d9849553f6f6d3e3b8940ef9dd98bafe9b4791b60b4b8f0ce7a8", "simhash": "1:200faa2e478d364a", "word_count": 2852 }, "last_updated": "2023-07-14T14:51:15.332188+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re APPLICATION OF EDWARD J. ROSEWELL, County Treasurer.\u2014(EDWARD J. ROSEWELL, Collector-Appellant, v. THE CITY OF CHICAGO, Objector-Appellee.)" ], "opinions": [ { "text": "Mr. JUSTICE DOWNING\ndelivered the opinion of the court:\nThis appeal arises from a judgment of the circuit court of Cook County on an application for judgment and order of sale against 82 parcels of real estate returned delinquent for the nonpayment of real estate taxes in 1973. The City of Chicago, owner of the fee simple interests in the subject properties, objected to the real estate tax assessments against these properties. On cross-motions for summary judgment, judgment was entered for the city. The county collector appeals.\nThe sole issue presented is whether the contractual agreements between the City of Chicago and other persons for the operation of parking facilities on the subject properties constituted leases for purposes of section 26 of the Revenue Act of 1939 (Ill. Rev. Stat. 1977, ch. 120, par. 507), which provides as follows:\n\u201cWhen real estate which is exempt from taxation is leased to another whose property is not exempt, and the leasing of which does not make the real estate taxable, the leasehold estate and the appurtenances shall be listed as the property of the lessee thereof, or his assignee, as real estate.\u201d\nThe parties stipulated that all of the subject properties were owned by the City of Chicago during the period in question, that all were improved with parking facilities which were operated by persons other than the city under written agreements, that all were assessed by the county collector during 1973, and that all such assessments were not against the tax-exempt fee interest of the city, but rather were against the interests, if any, of the parking lot operators. Incorporated in the stipulation was a copy of an ordinance which authorized the city\u2019s execution of the agreements and which presented the text of a \u201cCity of Chicago Parking Facility Agreement\u201d agreed to be of the same form and substance as each of the 82 agreements executed. A summary of the terms of this agreement of importance to this appeal follows.\nThe agreement is described as the \u201cCITY OF CHICAGO PARKING FACILITY OPERATOR\u2019S AGREEMENT.\u201d The preliminary paragraphs state that the city \u201chereby grants to the Operator the privileges hereinafter described,\u201d that the agreement constitutes the entire agreement between the parties, and that the duration of the agreement is for one calendar year, unless sooner terminated.\nArticle I defines the \u201cBureau of Parking\u201d as that agency of the city \u201chaving management and control of the establishment, operation and maintenance of parking facilities\u201d; \u201cCommissioner\u201d is defined as \u201cthe Commissioner of Streets and Sanitation of the City of Chicago, or any other official designated by the City Council to have administrative supervision over the Bureau of Parking\u201d; and \u201cOperator\u201d is defined as an entity which \u201cowns, controls, manages and directs the business of parking motor vehicles.\u201d\nArticle II provides that \u201cthe Operator shall not assign or transfer this agreement nor any of the rights or privileges granted hereby, nor enter into any contract requiring or permitting the doing of any act hereunder by an independent contractor, unless otherwise expressly provided herein, without prior written approval signed by the Commissioner.\u201d This article continues that if \u201cthe control of the said [operator] entity changes at any time during the term hereof, the City may * take immediate possession of said premises and facility\u00ae .\u201d By virtue of article II the city and the operators are not to be considered co-partners or joint venturers.\nArticle III provides that the operator\u2019s \u201ctaking possession\u201d of the premises shall constitute conclusive evidence of \u201chis receipt thereof\u201d in satisfactory condition.\nArticle IV requires that the operator keep the premises in a safe, sanitary and sightly condition, and in good repair and \u201cyield the same back\u201d to the city upon termination in such condition. If the premises are not so kept by the operator, the city may enter the premises \u201cwithout such entry constituting a termination of the privileges herein granted or an interference with the possession of or constructive or other eviction .\u201d\nArticle V prohibits the posting of signs, billboards, posters, or other advertisements in the facility by the operator without the prior written approval of the commissioner. The right to post such signs is reserved to the city.\nArtice VI provides that \u201cthe Operator shall make no alterations or additions to the premises and facility * * without the prior consent of the City \u00b0.\u201d\nArticle VII lists seven categories of maintenance responsibilities including \u201cminor necessary repairs\u201d to be assumed by the operator. The power to determine whether a repair is minor is reserved to the city. The operators failure to fulfill these duties empower the city to \u201center upon said premises\u201d to insure compliance. The operator agrees to reimburse the city for all costs and expenses incurred by the city in entering and fulfilling the operator\u2019s maintenance responsibilities.\nArticle VIII lists 10 categories of duties imposed on the city including making necessary major repairs; supplying and maintaining all cash registers and pavement markings; supplying all parking tickets and forms, and light bulbs and fuses; and maintaining aE directional, informational, and advertising signs.\nArticle X states that the operator agrees to operate the facility \u201cfor the convenience of the public and shall use and occupy the above premises solely for off-street parking of motor vehicles \u00b0 \u00b0 \u00b0 shall use his best efforts to secure, maintain and develop the parking business conducted by him \u00b0 \u00b0 and to increase the same whenever and wherever possible, and shall refrain from and prevent the diversion of any such parking business from the facility whenever possible.\u201d\nUnder article XI the operator agrees to operate the facility 24 hours per day, seven days per week, unless otherwise instructed by the commissioner.\nArticle XII prohibits the removal of any such vehicle by the operator without the consent of the owner, except with the prior written approval of the commissioner. The article also forbids the parking of commercial vehicles without the commissioner\u2019s written approval. At no time may an operator permit the parking of a vehicle free of charge.\nUnder article XIII the operator agrees to have aE employees wear uniforms, caps, and badges of a color and design approved by the city.\nArticle XV provides that, in the event of damage or destruction of the facility, the city may require the operator to submit plans for repairs or may declare the facility beyond repair and terminate the agreement.\nArticle XVIII fixes the rates to be charged for parking and reserves the right to adjust such rates to the city.\nArticle XIX defines the terms used in computing and the procedure used in distributing the revenues from the facihties. The \u201cbasic or minimum fee\u201d of the operator is defined as \u201cthat amount of compensation\u201d which the city regards as reasonable for \u201cmanagement services to be rendered by the Operator\u201d for a normal level of operation. If the facility\u2019s revenues exceed a stated amount, the operator\u2019s fee is adjusted according to a schedule designed to maintain the fee at approximately 4% of the gross revenue. This additional fee is subject to change in accordance with changes in the parking rates. This article also provides that the operator is to advance all license fees, taxes, and charges assessed and is to pay to have an armored car service deliver the facility\u2019s revenues daily to the city. These and all other expenses incurred by the operator must be presented in a budget for the city\u2019s approval. The operator is reimbursed for these expenses by the city.\nArticle XXII provides that if the operator abandons the operation of the facility for more than 10 days, \u201cthe Operator\u2019s right to possession of the premises and facility thereupon shall cease and terminate.\u201d Under this provision \u201cthe Operator agrees to surrender to the City possession of the premises and facility immediately without notice * * * and the Operator \u201d \u201d \u201d grants to the City full and free license to enter into and upon said premises and facility * * * to take possession thereof without such entry constituting a trespass or forcible entry and detainer.\u201d\nI.\nThe general definition of a lease is well settled:\n\u201cWhatever is sufficient to show that one party shall divest himself of possession and the other party shall come into it for a determinate time and for a fixed rental amounts to a lease.\u201d (Miller v. Gordon (1921), 296 Ill. 346, 350, 129 N.E. 809.)\nThe stipulated facts clearly establish that the agreements were for fixed terms. However, it remains to be determined whether the parties intended to transfer possession to the operators sufficient to effect the transfer of a leasehold estate resulting in the payment of rents.\nA.\nRelying primarily on articles III, IV, VII, X, and XXII and the parties\u2019 stipulation that the operators actually operated the facilities, the collector asserts that the operators had exclusive possession of the facilities. Although the city concedes that the operators had possession of the facilities, it refers us to articles VIII, XII, XIII, and XVIII which delineate the operators\u2019 actions which are subject to the control and management of the city. Thus, the city contends that the operators\u2019 mere possession without any control over the use of the premises fails to transfer a leasehold estate and at most gives the operators licenses to operate the facilities for the city.\nThe distinction between a lease and a license, and the guiding principles for the determination of this distinction, were set forth in Holladay v. Chicago Arc Light & Power Co. (1st Dist. 1894), 55 Ill. App. 463, 466-67:\n\u201cWhether a contract be a lease or a license will be determined, not from what the parties to it may choose to call it, nor from the language used, but from the legal effect of its provisions.\n\u2018An instrument is not a demise or lease, although it contains the usual words of demise, if its contents show that such was not the intention of the parties.\u2019 1 Woodfall\u2019s Landlord and Tenant, 125; Wood\u2019s Landlord and Tenant, Sec. 227.\nWhether a tenancy is created or not depends upon the intention of the parties, although this intention must in most cases be inferred from the circumstances which attend the case. \u2018In general, the question of possession will determine the matter.\u2019 Alwood v. Ruckman, 21 Ill. 200; see, also, Gunning Co. v. Cusack, 50 Ill. App. 290.\n\u2018An instrument that merely gives to another the right to use premises for a specific purpose, the owner of the premises retaining the possession and control of the premises, confers no interest in the land and is not a lease, but a mere license.\u2019 Wood\u2019s Landlord and Tenant, Sec. 227.\nA lease possesses the property of passing an interest in the land, and partakes of the nature of an estate. Taylor\u2019s Landlord and Tenant, Sec. 14.\nA license is an authority to do some act on the land of an other, without passing an estate in the land, and \u2018being a mere personal privilege, it can only be enjoyed by the licensee himself, and is not therefore assignable so that an under tenant can claim privileges conceded to a lessee.\u2019 Ibid., Sec. 237a.\nExclusive possession is essential to the character of a lease. Central Mills v. Hart, 124 Mass. 123.\u201d\nThus, although the reservation of a concurrent right of possession or the restriction of the rights granted to a single use does not necessarily prevent an instrument from having the effect of transferring a possessory interest and constituting a lease (see Gustin v. Barney (2d Dist. 1928), 250 Ill. App. 209), an agreement which merely entitles one party to use property subject to the management and control of the other party does not constitute a lease, but rather grants only a license (Holladay; see also Illinois Central R.R. Co. v. Michigan Central R.R. Co. (1st Dist. 1958), 18 Ill. App. 2d 462, 480-81, 152 N.E.2d 627).\nUnder these agreements the hours of operation (art. XI); the color and design of the uniforms, badges, and caps of the employees (art. XIII); the posting of signs (art. V); the setting of parking rates (art. XVIII); the types of vehicles to be parked (art. XII); the operators\u2019 ability to subcontract for work done on the premises (art. II); the operators\u2019 ability to make alterations and additions to the premises (art. VI); the marking of pavement lanes, and the types of cash registers and forms to be used (art. XIII); the operators\u2019 budget (art. XIX); and the major maintenance responsibilities (art. XIII) are all within the city\u2019s control. Since the legal effect to be given an instrument is not to be determined by the label it bears or the technical terms it contains (Bonde v. Weber (1955), 6 Ill. 2d 365, 377, 128 N.E.2d 883), the word \u201cpossession\u201d in the articles relied on by the collector and the description of the grant as \u201cprivileges\u201d do not alter our conclusion that the foregoing articles vested the control of the premises in the city. Under these circumstances, we find that the agreements were not intended to transfer a possessory interest coupled with the control necessary to create a leasehold estate. Our opinion that the operators were granted licenses to operate the facilities under the control of the city is further supported by the financial arrangements provided for in the agreements.\nB.\nRent is compensation for the use of land, and what the tenant pays rent for is quiet possession or beneficial enjoyment. (Cottrell v. Gerson (1939), 371 Ill. 174, 181, 20 N.E.2d 74.) The collector relies primarily on article XIX which in short provides that the rent equals gross revenues minus expenses minus the amount paid to the operator. Then pointing to Barsaloux v. City of Chicago (1910), 245 Ill. 598, 92 N.E. 525, and Lacey v. Newcomb (1895), 95 Iowa 287, 63 N.W. 704, the collector contends that the operators pay rent to the city for the lease of its properties. We disagree.\nFirst, this case does not deal with the diminishment of the value of the properties by the depletion of natural resources by a lessee. Therefore, we find the holding of Lacey, that royalties paid by mining companies to landowners for the use of their land constitute rent, inapposite to the question posed here. Secondly, the nature of the relationship between the parties in Barsaloux was not in issue. Therefore, we find that the court\u2019s reference to that agreement as a lease and the division of gross revenues as rent to be obiter dicta. Finally, although payments from a lessee to a lessor based on a percentage of receipts may constitute rent, we find nothing in article XIX to support the proposition that consideration in the form of rent flows from the operator to the city.\nUnder article XIX, all of the gross revenues are transferred directly from the operators to the city. Although the operators are required to advance all license fees, taxes, and other expenses, they are reimbursed for these expenses from the city. Also from these revenues, the city pays the operators \u201ccompensation which represents a reasonable base payment for management services to be rendered by the Operator.\u201d (Emphasis added.) Using the figures and formula supplied in the collector\u2019s brief, we note that, without considering the amount deducted for expenses, the city would extract a \u201crental\u201d of nearly 96% of the gross revenues. We believe it would be unrealistic to characterize this percentage of the profits as rent flowing from the operator to the city.\nIn light of the relatively small percentage of the revenues returned to the operators, the clear language of the agreements characterizing such payments as being for services, and the extent to which the city has retained control of the premises, we are of the opinion that the agreements were intended to transfer possession to the operators solely for management purposes for which the operators were to be paid a salary. Therefore, we conclude that these agreements do not constitute leases, but rather grant the operators licenses to operate the facilities for the public\u2019s benefit. Accordingly, we affirm the summary judgment of the circuit court of Cook County for the city.\nAffirmed.\nSTAMOS, P. J., and PERLIN, J., concur.\nThe term \u201clease\u201d is not defined in the Revenue Act. (See Ill. Rev. Stat. 1977, ch. 120, par. 482.) The only authority bearing on the construction of this term as utilized in the Act appears in Dee-El Garage, Inc. v. Korzen (1972), 53 Ill. 2d 1, 289 N.E.2d 431, in which amendatory language extending the scope of section 26 of the Act (Ill. Rev. Stat. 1977, ch. 120, par. 507) to include all uses of real property was held unconstitutional. Based on our research, we conclude that no special meaning of \u201clease\u201d for the purposes of this Act was intended by the legislature.", "type": "majority", "author": "Mr. JUSTICE DOWNING" } ], "attorneys": [ "Bernard Carey, State\u2019s Attorney, of Chicago (Paul P. Biebel, Henry A. Hauser, and Michael F. Baccash, Assistant State\u2019s Attorneys, of counsel), for appellant.", "William R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee." ], "corrections": "", "head_matter": "In re APPLICATION OF EDWARD J. ROSEWELL, County Treasurer.\u2014(EDWARD J. ROSEWELL, Collector-Appellant, v. THE CITY OF CHICAGO, Objector-Appellee.)\nFirst District (2nd Division)\nNo. 77-1277\nOpinion filed March 6, 1979.\nBernard Carey, State\u2019s Attorney, of Chicago (Paul P. Biebel, Henry A. Hauser, and Michael F. Baccash, Assistant State\u2019s Attorneys, of counsel), for appellant.\nWilliam R. Quinlan, Corporation Counsel, of Chicago (Daniel Pascale and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellee." }, "file_name": "0996-01", "first_page_order": 1018, "last_page_order": 1025 }