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08/22/97 QUALITY MANAGEMENT SERVICES v. SARVADAMAN

August 22, 1997

QUALITY MANAGEMENT SERVICES, INC., PLAINTIFF-APPELLEE,
v.
SARVADAMAN AND EILEEN BANKER, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 96 M1 706924. The Honorable Raymond Funderburk, Judge, Presiding.

Released for Publication October 9, 1997.

The Honorable Justice Hourihane delivered the opinion of the court. Hartman, P.j., and South, J., concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:

The sole issue on appeal is whether the Forcible Entry and Detainer Act (Act) (735 ILCS 5/9-101, et seq. (West 1996)) applies to cooperatives. We hold that it does and therefore affirm the judgment of the circuit court.

Defendants, Sarvadaman and Eileen Banker, are members of the Rocky Ledge Cooperative, Inc. (Cooperative). Pursuant to the terms of an Occupancy Agreement, defendants occupied an apartment in the Cooperative's building located at 7857-B South Shore Drive in Chicago. The Occupancy Agreement obligates defendants to pay certain "monthly carrying charges" representing their proportionate share of the Cooperative's operating expenses.

Plaintiff, Quality Management Services, Inc., as agent for the Cooperative, filed a forcible entry and detainer action against defendants, seeking unpaid monthly carrying charges of $2,503.25, plus attorney fees and costs. The circuit court entered an order of possession and money judgment in favor of the Cooperative. Defendants filed a motion to vacate the judgment and dismiss the action, arguing that the Act does not apply to cooperatives. The circuit court denied the motion and this appeal followed. 155 Ill. 2d R. 301.

ANALYSIS

Section 9-102(a) of the Act sets forth eight circumstances under which an action for forcible entry and detainer may be maintained. Plaintiff asserts that its forcible action is appropriate under subsection (4) which makes the Act applicable to situations involving a leasehold. 735 ILCS 5/9-102(a)(4) (West 1996); Central Terrace Co-Operative v. Martin, 211 Ill. App. 3d 130, 132, 569 N.E.2d 944, 155 Ill. Dec. 467 (1991) (hereafter Central Terrace). Defendants argue that under subsection (8), cooperatives are expressly excluded from the coverage of the Act.

Subsection (8) provides that an action for forcible entry and detainer may be maintained "when any property is subject to the provisions of a declaration establishing a common interest community ***." 735 ILCS 5/9-102(a)(8) (West 1996). Under section 9-102(c)(1), "common interest community" is defined, in relevant part, as "real estate other than a condominium or cooperative". 735 ILCS 5/9-102(c)(1) (West 1996). Citing Central Terrace, defendants assert that because the statutory definition of common interest community expressly excludes cooperatives, the Act does not apply to cooperatives. We disagree.

Under defendants' construction of section 9-102(c)(1), condominiums would also not fall within the coverage of the Act since condominiums, like cooperatives, are excluded from the definition of common interest community. However, this result is patently at odds with section 9-102(a) which specifically provides that a forcible action may be maintained when property is subject to the provisions of the Condominium Property Act. 735 ILCS 5/9-102(a)(7) (West 1996). We note, further, that section 9-102(b) sets forth certain requirements which must be satisfied before the Act is deemed applicable to a particular common interest community. Thus, by excluding condominiums and cooperatives from the definition of common interest community, section 9-102(c)(1) in effect excludes condominiums and cooperatives from the requirements of section 9-102(b). This is not, however, tantamount to excluding cooperatives from the coverage of the Act.

As to defendants' reliance on Central Terrace, although some legal publishers have cited this case for the proposition that cooperatives are excluded from the forcible statute *fn1, Central Terrace does not so hold. In Central Terrace, David Martin, a member of the Central Terrace Co-Operative (CTC), appealed from a judgment in favor of CTC on its complaint for forcible entry and detainer. The trial court, relying on this court's earlier decision in Sinnissippi Apartments, Inc. v. Hubbard, 114 Ill. App. 3d 151, 448 N.E.2d 607, 69 Ill. Dec. 889 (1983) (hereafter Sinnissippi), found that a landlord-tenant relationship was created by the cooperative lease agreement and thus CTC's cause was properly brought under the forcible statute. On appeal, this court reversed. We determined that Martin's relationship with CTC did not appear to be the "usual" cooperative arrangement set forth in Sinnissippi. Martin executed only one agreement, a "Mutual Ownership Contract", not a lease, which referred to Martin as a member, not a lessee. The contract provided that "'perpetual use of each particular dwelling shall be delivered by the corporation to the member in the form of a membership certificate.'" Central Terrace, 211 Ill. App. 3d at 133. Further, the bylaws stated that the corporation was formed for the purpose of owning residential property on a cooperative basis, not leasing it. Thus, we held that the trial court's finding that a landlord-tenant relationship existed was against the manifest weight of the evidence.

In Sinnissippi, we considered whether a member of a cooperative could be compelled by the board of directors to accept additional shares in the cooperative because certain improvements made by the member resulted in an additional contribution to capital. This court reviewed at length the nature of a cooperative:

"'Shares of stock *** are sold to persons who will occupy the housing units, the number of shares *** depending on the value of the particular apartment or unit. "Proprietary" leases are issued by the corporation to the shareholders. These leases contain provisions common to other leases. *** Rent, which is subject to being increased or decreased, is based upon estimates of amounts ...


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