The Supreme Court – which accepts only a small fraction of the cases litigants seek to have it hear – granted the association’s petition for leave to appeal, hearing oral argument on September 17, 2013. It was over half a year later, in a split decision rendered on March 20, 2014, that the Court reversed that portion of the appellate court judgment that had vacated the trial court’s judgment and remanded the case for partial reinstatement of Carlson’s affirmative defenses. In so ruling, the Supreme Court acknowledged that “[p]ermitting a unit owner’s duty to pay assessments to be nullified would . . . threaten the financial stability of condominium associations throughout this state.”
Illinois is the only state in the country that has a Forcible Entry and Detainer Act
The Ramifications of Spanish Court
From a procedural standpoint, it bears noting that Illinois is the only state in the country that has a Forcible Entry and Detainer Act. This legislative acknowledgment of the importance of a “quick method for collection of assessment arrearages” was also recognized by the Illinois Supreme Court itself over a decade ago, which was reiterated in the Spanish Court Opinion. Indeed, this “quick method” for collection of assessments was considered so important to Illinois condominium associations that – during the pendency of the Supreme Court proceedings on Spanish Court – the State legislature had submitted an amendment to that portion of the Illinois Code of Civil Procedure containing the Forcible Act, proposing the addition of language that would forbid a defense to Forcible actions that was based on an association’s failure “to maintain, repair or replace the common elements, common areas, common facilities, or any other property under its jurisdiction or control . . . .” The amendment failed to pass, however, leaving the decision about just what defenses could be raised to a Forcible action in the hands of the Supreme Court Justices.
So – and in light of the failed legislation – what would the consequences for Illinois’s residential associations have been if the Supreme Court had ruled differently and allowed defenses based on the association’s then-alleged breaches of its duties to repair, replace and maintain the common elements? Notably, the Supreme Court itself observed that permitting a unit owner to “nullify” his or her duty to pay assessments based on a belief that the association had breached its duty to repair or maintain a common
40 | COMMON INTEREST® A Publication of CAI-Illinois Chapter
element would “inject a myriad of fact-based inquiries into the forcible action, unduly prolonging what was intended to be an expeditious proceeding.” For confirmation of the legitimacy of this concern, one need look no further than the separate proceeding based on the severed Spanish Court counterclaim – which pleading contained almost exactly the same allegations as the stricken affirmative defenses; the counterclaim remains pending to this day in the Lake County court to which it was transferred over four years ago.
Allowing this “myriad of fact-based inquiries into the forcible action”, in addition to significantly lengthening the time it would take to get an order for possession and judgment, would also have resulted in considerably more pleading practice – and with it, increased expenses for the association to shoulder, however temporarily, while it pursues the delinquent unit owner. While forcible cases today typically can go to trial within a month or so after service of process on the unit owner, the injection of discovery-related issues and the schedules and expense of expert witnesses to give opinions on causation would have rendered such expedited proceedings a thing of the distant past.
In this time of economic downturn, where so many associations have already suffered tremendously from the burden of unpaid assessments, it is easy to see, too, how a unit owner’s decision to withhold assessments based on her belief that a breach of duty had occurred could have created a disastrous domino effect among possibly struggling unit owners. Indeed, courts around the country have observed that – unlike in apartment buildings, where the contractual relationship that creates the duty to pay rent is between the tenant and landlord, alone – the contractual duty of an association unit owner to pay assessments is an obligation owed to all the other unit owners, who together shoulder the budgetary requirements of an association. This communal obligation is indeed recognized within the statutory framework of the Illinois Condominium Property Act, which affords associations the right to maintain an action for possession against the defaulting unit owner “for the benefit of all the other unit owners”. That the 4-3 majority of the Illinois Supreme Court closed, rather than allowing to remain open, the “Pandora’s Box” of adverse consequences summarized above, is indeed a cause for communal relief within the greater residential association community.
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