Enforcing an association’s governing documents costs money, and community associations rely on fee-shifting provisions to make sure the community does not bear the cost of one owner’s violations. The Illinois Condominium Property Act and most declarations allow a condominium association to recover its attorney fees and costs from a unit owner who violates the governing documents.
But what happens when the court has already found that the unit owner cannot afford to pay court fees? 4310-4322 N. Clarendon Condominium Ass’n v. Klein, 2026 IL App (1st) 252082, answers that question. This blog article analyzes the appellate court’s ruling in Clarendon and provides practical guidance for Illinois community associations seeking to recover attorney fees from owners who have been granted a fee waiver.
Background of the Illinois Condominium Dispute
The 4310-4322 N. Clarendon Condominium Association, a Chicago condominium association, filed a verified complaint for injunctive and other relief against a unit owner, David Klein. According to the complaint, the owner and the occupants of his unit had been a nuisance to the condominium association for over five years and had committed multiple violations of the declaration. The complaint specifically requested an award of attorney fees under the declaration and the Illinois Condominium Property Act (765 ILCS 605/1).
When the owner appeared in the case, the circuit court granted him a full waiver of court fees under section 5-105 of the Illinois Code of Civil Procedure based on his limited income. The condominium association later won summary judgment, and the court awarded it attorney fees and costs. The association’s counsel submitted an affidavit and itemized billing records supporting $23,375.50 in attorney fees and $521.73 in costs.
The owner objected. He argued that his fee waiver gave him immunity from the condominium association’s fees and costs, and that the fees were excessive and not adequately supported. The association responded that the fee waiver covers only costs the court system charges a litigant, not the attorney fees incurred by an opposing party. The circuit court agreed with the association and entered a judgment against the owner for $23,897.23. The owner appealed.
Why the Illinois Appellate Court Held a Fee Waiver Does Not Cover Condo Association Attorney Fees
On appeal, the owner argued that his fee waiver made him statutorily immune from a judgment for the condominium association’s attorney fees and costs. Section 5-105 of the Illinois Code of Civil Procedure defines waived “fees, costs, and charges” as payments imposed on a party in connection with the prosecution or defense of a civil action. The owner argued that an order requiring him to pay the association’s attorney fees falls squarely within that language. The appellate court disagreed and affirmed.
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The statute’s title and list of waivable items point to court-imposed charges
The court looked to the statute’s title, “Waiver of court fees, costs, and charges.” While a title cannot limit the plain meaning of a statute, the court found that the title suggested the waiver is limited to charges for using the court system. Then, the court examined the specific items the statute lists, including clerk fees, service of process and publication fees, motion fees, translation services, guardian ad litem fees, and charges for mandatory mediation or similar programs. Every one of those items is imposed by the court and is inherent in litigation. None of them is a payment owed to the opposing party.
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The catchall language does not reach attorney fees owed to an opposing party
The owner then pointed to the phrase “including, but not limited to” and the statute’s catchall language. The court acknowledged that the list is not exhaustive but applied the rule of ejusdem generis, which means that general words following a list of specific items are limited to things of the same kind. Attorney fees owed to an opposing party are of a different nature entirely. The court explained that the Association’s fees were awarded because the owner owed them under the declaration and 765 ILCS 605/9.2(b) of the Illinois Condominium Property Act. Illinois follows the “American rule,” which allows a party to recover attorney fees from another party only when a statute or contract expressly provides for it. Here, both did. Those fees were not part of the owner’s cost of using the court system.
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Nothing in the statute’s purpose insulates indigent owners from liability to the association
Lastly, the court rejected the owner’s policy argument that the legislature could not have intended to waive a $250 appearance fee and then permit a $25,000 fee award. The court found nothing in the language, history, or purpose of section 5-105 of the Illinois Code of Civil Procedure suggesting it was meant to insulate indigent litigants from liability to an opposing party.
When Illinois Condo and HOA Boards Encounter Owner Fee Waivers
Fee waivers often arise in the following situations:
- Collection and eviction actions for unpaid assessments. Owners who fall behind on assessments can be the owners most likely to qualify for a fee waiver.
- Nuisance and rule enforcement actions. As in Clarendon, injunctive actions involving noise, odors, hoarding, disruptive occupants, or unauthorized alterations can often involve owners with limited income.
- Appeals. An owner who loses at the trial court may obtain a fee waiver to pursue an appeal, which can significantly increase the association’s legal costs.
- Self-represented owners. Owners who appear without an attorney often file a fee waiver application at their first court date and then assume the waiver applies to everything in the case.
Key Takeaways and Practical Guidance for Community Associations Seeking Attorney Fees
- A fee waiver protects owners from court costs, not from the association. An owner’s fee waiver under section 5-105 of the Illinois Code of Civil Procedure does not prevent an association from recovering its attorney fees and costs under the Illinois Condominium Property Act or the declaration.
- The source of the fee award matters. The court upheld the award because the declaration and 765 ILCS 605/9.2(b) of the Illinois Condominium Property Act expressly allowed it. An association without a clear fee-shifting provision will have a much harder time recovering its fees.
- Documentation still matters. The Association supported its petition with an affidavit and an itemized breakdown of its fees and costs. A fee waiver does not change the association’s burden to prove that its fees are reasonable.
- Request fees in the complaint. The Association in Clarendon specifically requested attorney fees under the declaration and the Illinois Condominium Property Act in its prayer for relief. Illinois community associations should do the same.
- Keep detailed billing records. Itemized invoices make it far easier to defend a fee petition against an argument that the fees are excessive.
Conclusion
The Illinois Appellate Court’s decision in Clarendon makes clear that a court fee waiver is not a shield against a condominium association’s attorney fees. A fee waiver allows an owner with limited income to access the court system on equal footing, but it does not excuse that owner from obligations he owes to the association under the declaration and the Illinois Condominium Property Act. Illinois community associations should ensure that their governing documents contain clear fee-shifting provisions and that their attorneys properly document and request fees in every enforcement action. The attorneys at Hirzel Law, PLC are experienced community association attorneys who can review an association’s governing documents, pursue enforcement and collection actions, and help associations recover the attorney fees and costs to which they are entitled.
