Can Illinois Condo Associations’ Recover Attorney’s Fees After Delinquent Owners Make Payment?
When condominium unit owners fall behind on assessments, most board members understand that the association has the legal authority to initiate collection efforts and, in some cases, litigation. However, if a unit owner eventually pays all outstanding assessments, should the homeowners association still be entitled to recover its legal fees? The Illinois Appellate Court addressed this issue in Townhomes on Wabash Homeowners Ass’n, Inc. v. Hayes-Ramos, 2021 IL App (1st) 201113-U. In this unpublished Rule 23 decision, the court confirmed that under Illinois’s HOA laws, homeowner associations are entitled to collect reasonable attorney’s fees incurred in enforcing unpaid assessments even if the owner later remits payment and the claim for possession is withdrawn. While this opinion is not precedential, it offers valuable guidance to Illinois homeowner associations.
Background
In July 2018, Townhomes on Wabash Homeowners Association, Inc. filed a forcible entry and detainer action in Cook County against unit owner Zakryscha Hayes-Ramos for nonpayment of assessments. In other words, the HOA filed an eviction case against the unit owner for not paying her dues. From there, the homeowners association asked the court to take possession of her unit and for a money judgment (a court order that requires one person/entity to pay a specific amount of money owed to another person/entity) for unpaid assessments, late fees, interest, and attorney’s fees.
Separately, the parties were already engaged in a dispute over masonry repairs in a different case (a pending Law Division case filed by the defendant in 2017). The association initially attempted to make the owner pay those repair costs too, but they decided to drop those reimbursement claims before trial, without prejudice—meaning the homeowners association kept the option to reinstate the claims again later.
Initially, the circuit court entered a default judgment (this is when a court rules in favor of a plaintiff because the defendant fails to respond to a summons or appear in court) awarding possession and a $6,630.06 money judgment to the HOA. However, the court vacated the default after the defendant entered her pro se appearance (when someone represents themselves in court without an attorney). She eventually satisfied her unpaid assessments and associated charges, at which point the association withdrew its possession claim. The court reserved the issue of attorney’s fees for later determination.
Attorney’s Fees Litigation
Following the defendant’s payment, the homeowners association filed a verified petition (a sworn statement under oath, in the form of a legal document) seeking $43,096.85 in attorney’s fees and costs. An affidavit (a written statement) and billing records supported the petition. The defendant, now represented by counsel, acknowledged that some fees were owed but disputed fees related to the voluntarily dismissed chargeback claim.
After a hearing, the circuit court awarded the association $46,676.85 in attorney’s fees, including supplemental accrued fees. When the defendant filed multiple post-judgment motions (formal requests asking the court to take a particular action, in this case to modify the judgment, after a final judgment has been made), the homeowners association sought and was awarded an additional $1,525 in fees. The defendant filed an appeal.
Appellate Court’s Ruling: Association May Recover Attorney Fees Per Illinois HOA Laws
The appellate court affirmed the circuit court’s judgment in full. First, it reiterated that 765 ILCS 605/9.2(b) of the Illinois Condominium Property Act and 735 ILCS 5/9-111 of the Forcible Entry and Detainer Act both authorize homeowner associations to recover attorney’s fees incurred in collecting unpaid assessments even when the litigation does not result in a judgment of possession. In Summary, I
Illinois’s HOA laws state that even if an HOA is not allowed to take possession of an owner’s unit after filing an eviction case, it still has the right to have its attorney’s fees paid by the unit owner, and to collect any interest/fees that resulted from the owner’s failure to pay their dues after proper notice.
765 ILCS 605/9.2(b) of the Illinois Condominium Property Act states:
Any attorneys’ fees incurred by [an] Association arising out of a default by any unit owner… shall be added to, and deemed a part of, [her] respective share of the common expense.
Similarly, 735 ILCS 5/9-111(a) of the Forcible Entry and Detainer Act provides:
Judgment in favor of the plaintiff shall be entered… for the amount found due by the court including interest and late charges, if any, together with reasonable attorney’s fees.
The appellate court rejected the defendant’s argument that the homeowners association was not entitled to fees because it never proved entitlement to possession of the unit. The court noted she had already paid the delinquent assessments, effectively recognizing that possession would have been proper had the lawsuit continued.
Moreover, the appellate court found no abuse of discretion; in other words, the appellate court believed the judge in the circuit court acted reasonably in awarding fees associated with the chargeback claim, even though that claim was later dismissed. The court held that those fees were still recoverable because they were incurred “in the litigation precipitated by [the] failure to pay her assessments,” citing North Spaulding Condo Ass’n v. Cavanaugh, 2017 IL App (1st) 160870.
Finally, the court sent the case back to the circuit court to determine the association’s attorney’s fees incurred on appeal, reinforcing that litigation costs continue to be recoverable when the underlying case arises from an owner’s default.
Key Takeaways for Illinois Condominium and Homeowners Associations
Under the court’s decision in Townhomes on Wabash, associations can and should aggressively protect their right to recover legal fees even when a unit owner ultimately pays the outstanding assessments. Here are several important lessons for board members and association counsel:
1. Recovery of Attorney’s Fees Is Not Dependent on a Final Judgment of Possession
Even if a homeowners association accepts payment and dismisses the possession claim, it can still pursue attorney’s fees incurred in the litigation. The right to attorney’s fees arises from the owner’s default and the homeowners association’s efforts to enforce its rights, not the outcome of the case.
2. Fees Related to Dismissed or Ancillary Claims May Still Be Recoverable
The defendant challenged the inclusion of legal fees for a chargeback claim that was ultimately dismissed without prejudice. The court upheld the award of those fees because they were part of the same litigation triggered by the owner’s delinquency. This is a crucial point for homeowner associations that may include multiple claims in their collection efforts.
3. Unit Owners Cannot Escape Fees by Belated Payment
Allowing unit owners to pay only the principal assessments and avoid responsibility for attorney’s fees would incentivize strategic nonpayment. Homeowner associations that fail to pursue fees risk shifting litigation costs onto all other owners, which Illinois HOA laws aim to avoid.
4. Homeowner Associations Should Keep Detailed and Accurate Billing Records
Detailed invoices and affidavits supported the fee award in Townhomes on Wabash. Community associations and their counsel must maintain accurate time records and be prepared to justify the reasonableness of fees in court.
Conclusion
Townhomes on Wabash Homeowners Ass’n v. Hayes-Ramos is a meaningful win for community associations throughout Illinois. The case reinforces the principle that unit owners who fail to pay their assessments are responsible for the unpaid amounts and the legal costs necessary to collect them. It also confirms that associations are within their rights to pursue attorney’s fees even after a case has been resolved.
At Hirzel Law, PLC, we understand the financial pressures that delinquent assessments can place on condominium and homeowners associations. Our attorneys have extensive experience in all aspects of Illinois’s HOA laws, and condominium law, including assessment collection, litigation, and enforcement of governing documents. If your association deals with delinquent owners or faces challenges in recovering legal fees, our attorneys are here to assist.
