Illinois Ruling Clarifies Associations’ Rights in Forcible Entry and Detainer Actions
In Bd. of Managers of Inverrary Condo. Ass’n v. Karaganis, 2017 IL App (2d) 160271, 80 N.E.3d 48, the Illinois Appellate Court clarified the enforcement powers available to condominium associations under the Forcible Entry and Detainer Act (735 ILCS 5/9-101). Specifically, the court held that a condominium association may pursue a money judgment, not just possession, against a delinquent unit owner and may enforce that judgment like any other creditor. This article will discuss the court’s decision in Inverrary and provide key principles for community associations.
Background
The defendant, James Karaganis, owned a unit in the Inverrary Condominium Association in Deerfield, Illinois. Between 2009 and 2012, he failed to pay his share of common expenses, accumulating over $5,000 in unpaid assessments. The association responded by filing a forcible entry and detainer action under 735 ILCS 5/9-111.1 of the Forcible Entry and Detainer Act, seeking possession of the unit and a money judgment, including attorney fees and costs. 735 ILCS 5/9-111.1 of the Forcible Entry and Detainer Act provides as follows:
As to property subject to the provisions of the “Condominium Property Act“, approved June 20, 1963, as amended, when the action is based upon the failure of an owner of a unit there in to pay when due his or her proportionate share of the common expenses of the property, or of any other expenses lawfully agreed upon or the amount of any unpaid fine, and if the court finds that the expenses or fines are due to the plaintiff, the plaintiff shall be entitled to the possession of the whole of the premises claimed, and the court shall enter an eviction order in favor of the plaintiff and judgment for the amount found due by the court including interest and late charges, if any, together with reasonable attorney’s fees, if any, and for the plaintiff’s costs. The awarding of reasonable attorney’s fees shall be pursuant to the standards set forth in subsection (b) of this Section 9-111. The court shall, by order, stay the enforcement of the eviction order for a period of not less than 60 days from the date of the judgment and may stay the enforcement of the order for a period not to exceed 180 days from such date. Any judgment for money or any rent assignment under subsection (b) of Section 9-104.2 is not subject to this stay. The eviction order is not subject to an exemption of homestead under Part 9 of Article XII of this Code. If at any time, either during or after the period of stay, the defendant pays such expenses found due by the court, and costs, and reasonable attorney’s fees as fixed by the court, and the defendant is not in arrears on his or her share of the common expenses for the period subsequent to that covered by the order, the defendant may file a motion to vacate the order in the court in which the order was entered, and, if the court, upon the hearing of such motion, is satisfied that the default in payment of the proportionate share of expenses has been cured, and if the court finds that the premises are not presently let by the board of managers as provided in Section 9-111.1 of this Act, the order shall be vacated. If the premises are being let by the board of managers as provided in Section 9-111.1 of this Act, when any order is sought to be vacated, the court shall vacate the order effective concurrent with the expiration of the lease term. Unless defendant files such motion to vacate in the court or the order is otherwise stayed, enforcement of the order may proceed immediately upon the expiration of the period of stay and all rights of the defendant to possession of his or her unit shall cease and determine until the date that the order may thereafter be vacated in accordance with the foregoing provisions, and notwithstanding payment of the amount of any money judgment if the unit owner or occupant is in arrears for the period after the date of entry of the order as provided in this Section. Nothing herein contained shall be construed as affecting the right of the board of managers, or its agents, to any lawful remedy or relief other than that provided by Part 1 of this Article.
Karaganis responded with a counterclaim, asserting that water damage from a plumbing failure in an adjacent unit had severely impacted his property and that the association had neglected its duty to repair the common elements. He further argued that this breach relieved him of his obligation to pay assessments, on which he relied on the appellate ruling in Spanish Court Two Condominium Ass’n v. Carlson, 2012 IL App (2d) 110473, ¶ 26, 366 Ill.Dec. 90, 979 N.E.2d 891.
However, in 2014, the Illinois Supreme Court reversed that decision in Spanish Court Two Condominium Ass’n v. Carlson, 2014 IL 115342, ¶ 36, 382 Ill.Dec. 1, 12 N.E.3d 1, holding that a unit owner’s payment obligations are independent of an association’s duty to maintain the property. Relying on the Illinois Supreme Court’s ruling in Spanish Court Two, the trial court ruled in favor of the association and awarded a money judgment against Karaganis for $8,159.85 in unpaid assessments and $23,300 in attorney fees, plus costs.
Appellate Court’s Analysis
Karaganis argued that the Forcible Entry and Detainer Act (735 ILCS 5/9-101) did not authorize personal judgments enforceable against his general assets. The appellate court rejected this argument and affirmed the trial court’s judgment in full.
- Associations May Obtain and Enforce Money Judgments Personally Against Unit Owners
Karaganis’s central argument was that the Forcible Entry and Detainer Act (735 ILCS 5/9-101) limited associations to possession of the unit and did not authorize them to collect money judgments by other means, such as wage garnishment or bank levies.
The appellate court disagreed. The court noted that 735 ILCS 5/9-111.1 of the Forcible Entry and Detainer Act expressly permits a money judgment, and the statute states that any money judgment is not subject to the mandatory stay that applies to judgments of possession. Moreover, the statute does not restrict enforcement mechanisms and includes a catch-all provision affirming that the association may pursue “any lawful remedy or relief other than that provided by Part 1 of Article IX.” The court held:
Irrespective of any liens created pursuant to the Condominium Act and irrespective of any rights under the condominium declaration, section 9-111(a) of the forcible statute provides for a money judgment when a unit owner fails to pay his assessments. As explained above, section 9-111(a) of the forcible statute does not limit the available remedies in the manner that defendant suggests. This is a matter of statutory interpretation, not contract law.
The court emphasized that if enforcement were limited to physical possession, the legislature would not have needed to distinguish between the stayed possession judgment and the immediately enforceable money judgment. The statute’s language clarified that the association could pursue the money judgment as any other creditor would.
- Maintenance Failures Are Not Germane to Attorney Fee Awards in Forcible Entry and Detainer Actions
Karaganis also argued that the trial court should have factored in the association’s failure to maintain his unit when deciding whether and how much to award in attorney fees.
The court, however, pointed again to the Illinois Supreme Court’s ruling in Spanish Court Two, which made clear that a unit owner’s obligation to pay assessments is not conditioned on the association’s fulfillment of its maintenance duties. Since the underlying issues in Karaganis’s counterclaims were not “germane” to the Forcible Entry and Detainer Action under the Forcible Entry and Detainer Act, they were irrelevant to the fee award. The trial court correctly excluded them from consideration.
- No Sanctions for Discovery Errors Absent Bad Faith or Prejudice
Finally, Karaganis argued that the association should be sanctioned under Supreme Court Rule 219(c) because its president signed an affidavit attesting to discovery compliance without having personally reviewed the documents. He claimed this misled him during trial preparation.
While the trial court acknowledged the affidavit was “misleading,” it found no evidence of bad faith or material prejudice. The court emphasized that Karaganis had opportunities to correct the issue during the trial but failed to take meaningful steps. Importantly, the affidavit’s shortcomings did not result in the concealment of evidence that would have altered the outcome.
On this basis, the trial court denied the motion for sanctions, and the appellate court affirmed, reiterating that sanctions are intended to ensure compliance, not to punish absent clear misconduct.
Key Principles for Community Associations
The appellate court’s decision in Inverrary highlights the following key principles:
- Money Judgments Are Enforceable Beyond Possession
Associations often hesitate to pursue money judgments through eviction actions, fearing that such judgments are only enforceable through possession or leasing the unit. This ruling eliminates that uncertainty. Associations may pursue the full range of collection remedies, such as wage garnishment, bank levies, and liens, just like any other judgment creditor.
- Assessment Obligations Are Absolute
Unit owners may not withhold payment of assessments based on perceived failures by the association. This ruling reaffirms that the duty to pay is absolute, and defenses related to maintenance issues must be pursued separately. Associations should proactively enforce assessment collections and not delay based on disputes about common element repairs.
- Attorney Fees Are Not Reduced Based on Maintenance Disputes
In assessing reasonable attorney fees, courts must focus on the nature of the action, not extraneous grievances the owner raises. This ruling protects associations from being penalized for unrelated complaints that unit owners try to inject into collection actions.
- Discovery Missteps Do Not Automatically Justify Sanctions
While associations should follow discovery rules, this case illustrates that not every error justifies sanctions. Courts will look to the party’s intent and whether any actual prejudice occurred before awarding penalties.
Conclusion
For Illinois condominium associations, the appellate court’s decision in Inverrary Condominium Association v. Karaganis affirms an association’s right to collect what it’s owed and enforce judgments against delinquent owners. Associations should feel empowered to use the legal tools available to them under the Forcible Entry and Detainer Act (735 ILCS 5/9-101) and the Illinois Condominium Property Act (765 ILCS 605/1) to protect their financial stability and fulfill their fiduciary duties to the broader community. Associations should consult with experienced community association counsel to ensure their enforcement efforts are correctly executed and legally compliant.
If your community association needs bylaw enforcement or collection-related assistance, the attorneys at Hirzel Law, PLC, are 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.
