The opinion of the court was delivered by: Justice McLAREN delivered the opinion of the court:
IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Appeal from the Circuit Court of Du Page County.
Honorable Bonnie M. Wheaton, Judge, Presiding.
Plaintiff, the Lake Hinsdale Village Condominium Association (the Association), sued under section 9 of the Condominium Property Act (Act) (765 ILCS 605/9 (West 1996)) to foreclose a lien for unpaid common expense assessments. Bernard and Wilhermina DaSilva, both deceased by the time of the suit, originally owned the unit. Defendant, the Department of Public Aid (Department), also asserted a lien against the property for medical assistance payments it made to or on behalf of Wilhermina DaSilva. Relying on section 3--10 of the Illinois Public Aid Code (Code) (305 ILCS 5/3--10 (West 1996)), the Department claimed it could satisfy its lien from the foreclosure proceeds before the Association could do so to recover any condominium assessments that came due after the Department recorded its lien. The remaining defendants having defaulted, the Association moved for summary judgment. The trial court granted the motion, ruling that the Association's lien was wholly prior to the Department's because the initial default that triggered section 9 of the Act occurred before the Department recorded its lien.
The Department appeals. It argues that the trial court erred in (1) giving the Association's lien priority insofar as it is based on assessments that came due after the Department recorded its lien; (2) holding that various incidental expenses, beyond the overdue assessments, were included in the Association's prior lien.
We agree in part with the trial court and in part with the Department. We hold that (1) the Association's lien for unpaid assessments has priority over the Department's lien, even as to assessments for the months after the Department recorded its lien; (2) the statutory lien does not extend to expenses other than those specifically listed in subsection 9(g)(1) of the Act (765 ILCS 605/9(g)(1) (West 1996)); and (3) the trial court must determine the amount of reasonable attorney fees and other incidental expenses due under the Association's statutory lien. We affirm in part, reverse in part, and remand for a determination of the precise value of the Association's lien.
The Association's foreclosure complaint, filed May 10, 1996, alleged the following facts. On October 25, 1994, the Association filed a notice of its lien claim with the Du Page County Recorder of Deeds. The Association asserted that Bernard and Wilhermina DaSilva owed the Association $2,487.09 and that the Association had a lien for this amount. On November 21, 1994, the Association took possession of the unit via a forcible entry and detainer judgment. The total due from the unit owners through May 6, 1996, was $14,565.33 plus "interest and assessments accrued hereinafter, advances for real estate taxes, storage fees, cleaning fees, insurance, court costs, title costs, etc., and [the Association's] attorneys fees."
The Association added the Department as a defendant; the other defendants were defaulted. The Department claimed that it had a lien against the property for $95,616.38 it paid to or on behalf of Wilhermina DaSilva in medical assistance pursuant to article V of the Code (305 ILCS 5/5--1 et seq. (West 1994)). The Department claimed that its lien had priority over the Association's lien insofar as the latter secured debt created by unpaid assessments coming due after July 8, 1994, the date that the Department recorded its lien. Thus, the Department could satisfy its debt from the proceeds of a foreclosure sale before the Association could use those proceeds to recover monthly assessments that came due after July 8, 1994. The Department conceded that the Association's lien for assessments due before July 8, 1994, had priority over its lien.
The Department relied on section 3--10.2 of the Code, which grants the Department a lien with priority over "any lien thereafter recorded or filed" (305 ILCS 5/3--10.2 (West 1994)). Also, the Department invoked the following language in section 9(g)(1) of the Act:
"(1) If any unit owner shall fail or refuse to make any payment of the common expenses or the amount of any unpaid fine when due, the amount thereof together with any interest, late charges, reasonable attorney fees incurred enforcing the covenants of the condominium instruments, rules and regulations of the board of managers, or any applicable statute or ordinance, and costs of collections shall constitute a lien on the interest of the unit owner in the property prior to all other liens and encumbrances, recorded or unrecorded, except only *** (b) encumbrances on the interest of the unit owner recorded prior to the date of such failure or refusal which by law would be a lien thereon prior to subsequently recorded encumbrances." 765 ILCS 605/9(g)(1) (West 1996).
The Association moved for summary judgment, asserting that, as a matter of law, the full amount of its lien under section 9 of the Act had priority over the Department's competing lien. According to the Association, its lien arose on October 15, 1993, when the unit owners first became delinquent on their assessments. An affidavit the Association's president filed February 11, 1997, detailed the assessments and other expenses the Association claimed. These included the cost of packing and storing the owners' personal property and repairing the unit, all of which the Association did pursuant to the forcible entry and detainer judgment; legal fees from July 1993 through the present; and past due maintenance fees for October 1993 through February 15, 1997.
In response, the Department argued first that, under St. Paul Federal Bank for Savings v. Wesby, 149 Ill. App. 3d 1059 (1987), a condominium association's lien does not arise before assessment payments are in default. Therefore, according to the Department, the Association's lien could not have priority over the Department's lien insofar as the former lien was based on assessments not payable until after July 8, 1994. The Department argued secondly that the Association's lien did not cover some of the Association's claimed expenses, such as repairing the unit, because these costs were not "common expenses," an "unpaid fine," or "interest, late charges, reasonable attorney fees *** [or] costs of collections" (765 ILCS 605/9(g)(1) (West 1996)). Furthermore, there was no evidence of how much of these charges came due before the Department recorded its lien.
After argument, the court granted the Association's summary judgment motion and entered a judgment of foreclosure and sale (see 735 ILCS 5/15--1506 (West 1996)). In concluding that all of the Association's lien had priority over the Department's lien, the court analogized foreclosing the lien to foreclosing a mortgage. In each situation, the monthly increase in the amount of money in default eats into the money available to satisfy a lien that arose after the initial default. The court also ruled ...