Illinois Court Rules Condo Association Can’t Charge for Leaky Toilet Without Allowing Owner to Repair

Illinois Court Rules Condo Association Can’t Charge for Leaky Toilet Without Allowing Owner to Repair

When an Illinois condominium association charges a unit owner for repairs or assessments, it must strictly follow the association’s governing documents and the Illinois Condominium Property Act (765 ILCS 605/1). That’s the clear message from the Second District Appellate Court in Onan Suites Condominium Association, Inc. v. Johnson, 2018 IL App (2d) 170455-U. The decision provides guidance to Illinois condominium associations and their board of directors when pursuing chargebacks and seeking possession for unpaid assessments. This article will discuss the case, and explain the importance for Illinois condominium associations.

Facts

Onan Suites Condominium Association (the “Association”) filed suit against unit owner Tina Johnson in 2016 under the Forcible Entry and Detainer Act, seeking over $7,000 in unpaid assessments, chargebacks, and fees, plus possession of her unit.

At trial, the Association’s property manager testified that Johnson had stopped paying assessments in June 2014. For over two years, she was charged $147 per month. However, in June 2016, the Association reduced her assessment to $116.67 based on her actual percentage of ownership. Despite the reduction, the Association never sent Johnson notice of the change.

The dispute also involved a $995 chargeback for plumbing repairs. After receiving a complaint from the unit below, the Association unilaterally hired a plumber to fix a leaking toilet in Johnson’s unit. It gave two days’ notice of the repair, but never directed Johnson to make the repair herself as required under Section 3.02 of the Association’s declaration. Section 3.02 stated that, if repairs are “necessary through the fault of the” unit owner, “then the Board may direct” the unit owner to perform the necessary maintenance or repairs “and pay the cost thereof.” If the unit owner fails or refuses to perform the necessary work “within a reasonable time after [being] so directed by the Board,” then the Board can have the work performed and charge the owner for the cost. Johnson’s brother, who lived in the unit, testified that the toilet still leaked after the repair.

After trial, the court entered judgment in favor of the Association, awarding damages, possession, attorney fees, and costs. Johnson paid the judgment and then filed post-trial motions to challenge the chargeback and assessment amount. She also asked the court to vacate the possession order under Section 9-111 of the Forcible Entry and Detainer Act, which permits a unit owner to retain possession by paying the full amount of the judgment and staying current on new assessments.  Following Johnson’s post-trial motions, the trial court entered various orders in favor of Johnson that (1) reduced the amount of the judgment the Association obtained against Johnson, (2) denied the Association’s motion for postjudgment attorney fees, (3) granted Johnson’s motion to vacate the portion of the judgment granting possession to the Association, and (4) denied the Association’s motion to reconsider. The Association then filed an appeal.

Appellate Court’s Ruling

The Appellate Court affirmed the trial court’s decisions in full.

1. Associations Must Follow the Governing Documents for Chargebacks

The Association argued that it had the authority to charge Johnson for the plumbing repair under the Illinois Condominium Property Act and its declaration. However, the appellate court disagreed. Section 3.02 of the declaration allowed chargebacks only if the Association first directed the unit owner to perform the repair and gave them a reasonable opportunity to do so. The trial court found and the appellate court held that the Association had not complied with the requirements of directing Johnson to make the repairs and waiting a reasonable time to see if she did so. Despite the emergency nature of the situation, the Association provided no legal support for bypassing the declaration’s process. The court emphasized that associations must strictly comply with their governing documents, especially when shifting repair costs to individual owners.

2. Assessments Must Reflect Percentage Ownership

The Association initially charged Johnson $147 per month, only later reducing it to $116.67 when her percentage interest was recalculated. At trial, the property manager admitted that $116.67 was correct. The Association tried to enforce the higher rate anyway, but the court reduced the past-due assessments accordingly.

The Association argued that Johnson had not objected to the budget at the annual meeting and was estopped from asserting that the lower assessment was correct. The Association relied on 765 ILCS 605/18(a)(8)(i) of the Illinois Condominium Property Act which provides: “that each unit owner shall receive notice, in the same manner as is provided in this Act for membership meetings, of any meeting of the board of managers concerning the adoption of the proposed annual budget and regular assessments pursuant thereto or to adopt a separate (special) assessment.” The Association argued that 765 ILCS 605/18(a)(8)(i) allows unit owners to appear and state any objections they may have concerning the proposed budget and assessments, and that if unit owners fail to seize this opportunity, they may not later challenge the assessments adopted at the meeting. However, the court rejected this argument and wrote 765 ILCS 605/18(a)(8)(i) “is simply devoid of language saying any of this—it does not even mention any opportunity for unit owners to object to assessments, much less state that the failure to object estops a unit owner from later challenging the assessment level.”

Then, the Association argued that Johnson was estopped from seeking to pay only the correct level of assessment under the voluntary payment doctrine, because she voluntarily paid the $147 monthly assessment before June 2014, and also voluntarily paid that level of assessment when she paid the full amount of the judgment in February 2017. The appellate court agreed with the trial court’s reasoning. It held that the voluntary payment doctrine did not apply, because (1) the only assessments sought by the Association at trial were those accruing in June 2014 and thereafter, and so Johnson’s payment of $147 per month before then was irrelevant; and (2) her postjudgment payment of the judgment amount did not fall within the doctrine.

3. Postjudgment Attorney Fees Require a Proper Record

After Johnson paid the judgment, the Association sought additional attorney fees incurred during post-trial proceedings. The trial court denied the request, and the appellate court upheld that denial primarily because the Association failed to provide an adequate record of what happened at the hearing on the fee motion. Although 765 ILCS 605/9.2(b) of the Illinois Condominium Property Act allows recovery of attorney fees stemming from an owner’s default, the court could not assess whether the claimed fees were reasonable or properly supported because the Association failed to include any transcript or bystander’s report of the proceedings. Accordingly, associations seeking attorney’s fees must provide an adequate record stating why the association is entitled to such fees.

Why This Case Matters for Illinois Condominium Associations

1. Strict Compliance With the Governing Documents Is Not Optional.

Whether dealing with chargebacks or assessments, condominium associations must look to the language in their governing documents to determine the correct procedures. Onan Suites shows that Illinois courts will enforce declarations and bylaws to the letter, and associations that do not follow their governing documents are unlikely to prevail in court. Although emergency repairs may justify access to a unit under 765 ILCS 605/18.4(j) of the Illinois Condominium Property Act, such repairs may not necessarily justify a chargeback unless the board complies with the association’s governing documents.

1. Accurate Budgeting and Assessment Practices Are Critical

Assessments must be calculated based on the correct percentage of ownership, as outlined in the association’s governing documents. Even if made in good faith, mistakes may not be enforceable once corrected. Transparency in budgeting and communication with owners can prevent disputes and legal exposure.

1. Document the Record at Every Stage

Associations pursuing attorney fees must properly document their claims. That includes itemized billing, legal authority for recovery, and a complete record of any hearing. Failure to do so may result in a condominium association not being able to recover attorney’s fees.

Conclusion

The Onan Suites decision discusses the consequences of condominium associations taking procedural shortcuts. Even when a unit owner is delinquent, the board’s authority is not boundless. Illinois courts expect condominium associations to follow the Illinois Condominium Property Act and their governing documents. Condominium associations and boards should look to Onan Suites to guide enforcement actions. Before bringing an enforcement action against a unit owner, condominium boards should confirm they have followed the language in their governing documents and the Illinois Condominium Property Act. Failure to do so may result in a legal loss at trial. At Hirzel Law, we work with Illinois condominium and homeowners associations to ensure enforcement efforts are effective, enforceable, and compliant. If your association needs assistance with assessment collection or declaration enforcement, we’re here to help.

 

Jeremy Fernando is an Associate Attorney at Hirzel Law, PLC., Mr. Fernando is licensed to practice law in the State of Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Fernando’s legal career includes serving in corporate practice where he represented insurance companies and institutional investors in U.S. and cross-border private placements of securities, including transactions in the Netherlands, England, Ireland, Australia, and Germany. Mr. Fernando earned his Juris Doctor from Marquette University Law School, where he graduated with honors and ranked in the top 15% of his class. He also served as an Associate Editor of the Marquette Law Review. Mr. Fernando is committed to providing effective legal representation to his clients and is passionate about helping communities navigate complex legal challenges. He may be reached at 312-552-7669 or jfernando@hirzellaw.com.