Heyl Royster


State of Unused Land: An Introduction into Acquiring or Re-Acquiring Abandoned Illinois State Land

By: Wade Blumenshine, wblumenshine@heylroyster.com

The state of Illinois routinely acquires land in order to fulfill basic responsibilities to its citizens. These responsibilities include building new roads and improving existing ones, erecting and expanding public buildings, and creating state parks. If it could not acquire private property, the state would be unable to fulfill these fundamental responsibilities. Land acquired by the state of Illinois occasionally becomes unused because the project ceases to develop further than the acquisition of the land.

Regardless of the method the state used to acquire the land, if the land is deemed unused, statute 605 ILCS 5/4-508 allows the public to acquire or re-acquire those unused parcels. The process between submitting a Letter of Intent and the acquisition of the land is lengthy as the Illinois Department of Transportation must determine the complete status of the parcel of land and the legislature must approve of the transfer at the conclusion.

Methods of Acquisition

The state of Illinois acquires private property through a variety of methods, most commonly purchasing it directly from the owner or through its power of eminent domain in a court proceeding called condemnation.

If the Illinois Department of Transportation needs your property, it will first approach you with an offer to purchase it, just as a private individual would. The amount of the offer will be what the Department of Transportation believes your property would bring if it were put up for sale (called fair market value). The Department of Transportation will obtain an appraisal or waiver valuation, depending upon the complexity of the assignment, to determine the fair market value. If the Department of Transportation wishes to purchase only part of your property, the amount it offers will include compensation for any damages that is the loss in value of your remaining property that will be caused by the acquisition.

The Department of Transportation’s offer will be based on the determined fair market value. State purchases of property are concluded, just as in private sales, with the property owner giving the Department of Transportation the proper deed and other documentation to transfer good title.

The methodical process the state uses to determine fair market value and acquire property is relevant because it the same process the state uses when an individual inquires about purchasing a parcel of land back from the state. Additionally, if you fall under the criteria of 605 ILCS 5/4-508(c), the documentation executed at the time of transfer will exist in the Department system and be relied upon when re-acquiring the unused parcel of land.

Land Abandonment and § 5/4-508

The state sometimes ends up not moving forward with the construction of a highway or project that the land was initially acquired or purchased for, and the land sits vacant and unused for years or even generations. That land can be acquired or re-acquired by any private citizen by way of statute 605 ILCS 5/4-508(a), which allows Property Sales and Property Auctions to be held by the Department to dispose of excess land or improvements no longer needed for highway purposes. The wording of the Statute is contained in its entirety below:

Except as provided in paragraphs (c) and (d) of this Section, and subject to the written approval of the Governor, the Department may dispose of, by public sale, at auction or by sealed bids, any land, rights or other properties, real or personal, acquired for but no longer needed for highway purposes or remnants acquired under the provisions of Section 4-501, provided that no such sale may be made for less than the fair appraised value of such land, rights, or property.

605 ILCS 5/4-508(a).

Under section 5/4-508(c), a person from whom the subject parcel of land was acquired and who has continuously owned the land abutting the parcel of land since its acquisition by the state has the option of purchasing the parcel of land directly. This allows land owners to make their land whole once again and avoid having to compete for their former property at a state-held land auction. The parcel of land is still subject to the lengthy investigatory process as required by the Illinois Department of Transportation to determine the status and market value of the land, but the former owner of the land has the option to purchase the land within 60 days without any competition if they so choose.

If at the time any property previously determined by the Department to needed for highway purposes is declared no longer needed for such purposes, and the person from whom such property was acquired still owns and has continuously owned land abutting such property since the acquisition by the Department, the Department before making any disposition of that property shall first offer in writing that property to the person from whom such property was acquired at the current appraised value of the property. If the offer is accepted in writing within 60 days of the date of the written offer, the Department, subject to the written approval of the Governor, is authorized to dispose of such property to the person from whom such property was acquired upon payment of the appraised value. If the offer is not accepted in writing within 60 days of the date of the written offer, all rights under this paragraph shall terminate.

605 ILCS 5/4-508(c).

As part of section 5/4-508(d), the Department of Transportation allows special conveyance rights to any highway authority that currently has a written contract with the Department of Transportation. Prior to this statute the state only had authority to transfer highway jurisdiction, but not real estate interest. Now any real estate interest can be conveyed between the state and any highway authority if it is mutually agreeable between all parties.

If the Department enters into or currently has a written contract with another highway authority for the transfer of jurisdiction of any highway or portion thereof, the Department is authorized to convey, without compensation, any land, dedications, easements, access rights, or any interest in the real estate that it holds to that specific highway or portion thereof to the highway authority that is accepting or has accepted jurisdiction. However, no part of the transferred property can be vacated or disposed of without the approval of the Department, which may require compensation for non-public use.

605 ILCS 5/4-508(d).

Department Procedure and Time Frame

Regardless of the size of the parcel, the process from start to finish to acquire any land is often very slow moving. Ultimately, the process begins with a Letter of Intent that includes all required documentation and ends with the Governor/legislature signing off on an order approving the transfer of land, whether directly or by auction. Before the Governor can sign off on the sale or transfer of the land, the Department of Transportation must undertake a lengthy evaluation of the land to both determine its fair market value, size, ownership history, use status, and other required data. This process can take months depending on the location of the land and the speed that the various tasks are performed by the Department of Transportation or its agents.

If the parcel of land falls under 605 ILCS 5/4-508(c), this information is easily provided as part of the Letter of Intent packet. The contract with the state in which the parcel was initially transferred from private citizen to the state will be crucial in expediting the process. If the parcel of land does not fall under or meet the requirements in section 5/4-508(c), then the Department of Transportation has to review their records and determine the acquisition history of the parcel of land as part of its initial investigation.

The Department of Transportation will then perform at least one survey of the parcel, and depending on the estimated value of the land, the Department may do multiple surveys. These surveys are the most time-consuming aspect of the process and can take many months to perform and complete the required documentation and legal descriptions.
At the end of the process, once the Department has completed its investigation of the parcel and all its internal paperwork, the land will be fully appraised and assigned a price no less than the fair market value. Upon completion of all paperwork, the Governor must sign off on an order allowing the property to be transferred or auctioned off, which could take weeks or months.
Obstacles to consider if the parcel does not fall under section 5/4-508(c) are the possibility that someone else will purchase the land at auction, the Department does not deem the land unused, or the Department does not have the ability to transfer the property. This is, however, all determined before the property is surveyed or any of the more lengthy aspects of the investigation occur.


The state of Illinois acquires land through a variety of methods, but from time to time, the reasons that the land is acquired, such as the building of a highway, do not come to fruition and the land that was once acquired becomes unused. Private citizens who either sold their land to the state or were forced to sell their land to the state may find themselves wanting to purchase the land back and return their property back to its original form. Additionally, citizens who purchased property may want to purchase unused property from the state to add additional land to the property they now own. 605 ILCS 5/4-508 exists as a process that allows citizens to acquire this unused land. The process to do so is long and convoluted as the Illinois Department of Transportation undergoes its internal process to review the parcel of land, determine its status, determine its size and value, and ultimately have the legislature sign off on its transfer. If you find yourself in a situation such as this, it is important to have a strong advocate who understands the Illinois Department of Transportation’s internal process and can navigate through the steps from start to finish. At Heyl Royster we have the experience and the ability to help you acquire or re-acquire unused land from the state of Illinois swiftly and efficiently.