Jun 23, 2016

Appellate Court decides issue of post-judgment collection fees for condominium orders for possession

The Illinois Appellate Court, First District (Cook County), has issued a new opinion regarding the collectability and enforcement of post-judgment attorney’s fees and costs related to Assessment collection orders for possession. The Court, in State Place Condominium Association v. Magpayo, 2016 IL App (1st) 140426 (1st Dist. 2016) held that in order for an owner to regain possession of their unit and vacate an order for possession, the full default amount must be cured, including the post-judgment attorney’s fees and costs the Association incurs.

This case ties together a discrepancy between section 9.2 of the Condo Act, as amended in 2012, and an earlier Third District Appellate Court case, Glens of Hanover Condominium Association v. Chiaramonte, 159 Ill. App. 3d 287, 292 (3rd Dist. 1987) which held that post-judgment attorney’s fees may not necessarily need to be paid in order to vacate an order for possession. The court, in Magpayo, noted that a subsequent amendment to Section 9.2 of the Illinois Condominium Property Act that added attorney’s fees into the category of recoverable common expense due from an owner and their unit functionally silenced the Chiaramonte case. Reading this change to Section 9.2 and the existing language of the forcible entry and detainer provisions of the Illinois Code of Civil Procedure that state clearly the required categories of expenses that must be current, it is clear that post-judgment attorney’s fees and costs must be paid.

Section 9-111(a) of the Code of Civil Procedure states, "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 judgment, the defendant may file a motion to vacate the judgment in the court in which the judgment 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 judgment shall be vacated." 735 ILCS 5/9-111(a) (West 2016).

This means that owners must be absolutely current on the full judgment balance, any accrued attorney’s fees and costs, plus current assessments in order to vacate an order for possession and regain possession of their condominium unit. The case did not necessarily rule on the issue of whether or not an association-placed tenant may continue to complete their existing lease, but the statute is clear on that issue. Association-placed tenants generally are allowed to remain until the conclusion of their lease, even if the owner is current.

Magpayo, therefore, underscores the clear intention of both the forcible entry and detainer provisions and the Illinois Condominium Property Act that paid in full really means paid in full.

This Chuhak & Tecson, P.C. communication is intended only to provide information regarding developments in the law and information of general interest. It is not intended to constitute advice regarding legal problems and should not be relied upon as such.

Client alert authored by: James R. Stevens, Principal