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Spanish Court Two Condominium Association v. Lisa Carlson

June 27, 2012


Appeal from the Circuit Court of Lake County. No. 10-LM-301 Honorable Michael J. Fusz, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.


¶ 1 Plaintiff, Spanish Court Two Condominium Association, brought an action against defendant, Lisa Carlson, under the Forcible Entry and Detainer Act (the Forcible Entry Act) (735 ILCS 5/9-111 (West 2010)), seeking possession of her condominium unit and an award of unpaid general and special assessments, late fees, and costs and attorney fees. Defendant appeals from the trial court's pretrial ruling dismissing her affirmative defenses and counterclaim, which were premised on plaintiff's alleged failure to maintain the exterior of the building, resulting in damage to the interior of defendant's unit, and on plaintiff's alleged failure to repair a toilet that was damaged when plaintiff demolished part of defendant's unit while attempting to determine the source of a leak into a neighboring unit. Defendant also appeals from the court's subsequent judgments granting plaintiff the right to take possession of the unit and imposing a monetary award. The latter consisted of (1) delinquent general, or monthly, assessments as well as a special assessment for replacement of patio doors, (2) late fees for the delinquent assessments, and (3) costs and attorney fees. Plaintiff cross-appeals from the court's refusal to enter judgment for a special assessment to upgrade the fire alarms and elevator on the condominium property. Plaintiff also requests an award of costs and attorney fees on appeal. We hold that the trial court was correct in severing the counterclaim but that it erred in striking the affirmative defenses in their entirety. We reverse and remand for partial reinstatement of the affirmative defenses.


¶ 3 At all times relevant here, defendant was the owner of a condominium unit in a building governed by plaintiff pursuant to its condominium declaration. Plaintiff's forcible entry and detainer (FED) complaint, filed February 5, 2010, brought two counts. Count I was entitled "Possession" and cited provisions of the Forcible Entry Act. Plaintiff alleged that it had approved, pursuant to the declaration, "monthly and special assessments and other common expenses," and that defendant was delinquent in paying the common expenses. Plaintiff alleged that defendant had not paid the monthly assessments from August 2009 through January 2010. Plaintiff did not specify the "special assessments" that it claimed defendant owed. As remedies, plaintiff sought both possession of defendant's unit and a monetary award of $2,143.83, which included delinquent monthly and special assessments, late charges, and costs and attorney fees.

¶ 4 Count II of the complaint alleged breach of contract. The count incorporated all of the allegations of count I concerning defendant's failure to pay the common expenses. The count incorporated count I's citations to the Forcible Entry Act and cited no additional authority. Finally, count II did not seek possession but only the same monetary award sought in count I.

¶ 5 On March 18, 2010, defendant filed her combined answer, affirmative defenses, and counterclaim. On November 9, 2010, the trial court granted plaintiff's motion to strike defendant's affirmative defenses and sever her counterclaim. Following a bench trial, the court entered judgment awarding defendant both possession of the unit and a monetary sum comprised of unpaid assessments, late fees, and costs and attorney fees.

¶ 6 The issues in this appeal involve the following two documents: (1) the "Declaration of Condominium Ownership and of Easements, Restrictions and Covenants For Spanish Court II Condominium Development" (Declaration); and (2) the "By Laws of Spanish Court II" (Bylaws). The sole copies in the record, which are the exhibits admitted at trial, are partly illegible (apparently from poor photocopying)*fn1 but the portions on which the parties rely, and that seem most material to the issues at hand, are legible.

¶ 7 In her combined answer, affirmative defenses, and counterclaim, defendant "admit[ted] that she ha[d] not paid her assessments from August[] 2009," but "denie[d] that she owe[d] those assessments in light of the damages she *** incurred as a result of certain property damage sustained by her condominium unit as a result of [defendant's] failure to properly maintain the roof directly above her unit and for destroying property within her unit without justification." Defendant alleged as follows regarding the roof. About 12 years ago, plaintiff replaced the roof directly above defendant's top-floor unit. Plaintiff thereafter failed to undertake "certain [yearly] maintenance procedures" recommended by the company that replaced the roof. As a result of this failure, the roof deteriorated, allowing "a significant amount of water leakage" into defendant's unit. The leak deformed the drywall, disengaging it from the wall studs, and caused the paint to peel. Defendant is "liable to expend significant sums of money to repair the unit." Despite repeated requests by defendant, plaintiff has refused to repair the roof and stop the leak.

¶ 8 Defendant also alleged that the "brickwork directly above [her unit]" has deteriorated and is in need of "repair, recaulking, and tuckpointing." Defendant alleged that "an experienced professional" inspected the brickwork and determined that its condition "has also allowed water to enter into her unit[,] which has contributed to the damage of the walls and internal structure of her unit." Although plaintiff is aware of the deteriorating brickwork, it has refused to repair it.

¶ 9 Finally, defendant alleged that plaintiff failed to finish certain interior repairs. Defendant alleged that, several months ago, plaintiff directed plumbers to enter her unit "and destroy the wall and plumbing in the bathroom *** on the belief that a leak in a neighboring unit was caused by a leaking pipe in the bathroom of [her unit]." The plumbers determined that the leak originated elsewhere. Plaintiff subsequently replaced the drywall and restored the plumbing, but defendant found that her toilet would not work. Although plaintiff is aware of the inoperative toilet, it has refused to repair or replace it.

¶ 10 Defendant advanced two separate affirmative defenses based on the foregoing allegations. Both defenses claimed that the alleged neglect by plaintiff constituted a breach of its covenant under the Declaration to maintain, repair, and replace the common elements of the condominium property utilizing the mandatory assessments collected by plaintiff from unit owners. As her first defense, defendant asserted that plaintiff was "estopped as a matter of law" from seeking past-due assessments and associated late fees, costs, and attorney fees. As her second (and alternative) defense, defendant requested that there be deducted from any monetary award against her an amount between $6,000 and $10,000, the estimated cost of repairing the damage to her unit.

¶ 11 Based on the same allegations, plaintiff counterclaimed for an award of damages between $6,000 and $10,000.

¶ 12 On April 14, 2010, plaintiff filed motions to strike defendant's affirmative defenses and sever her counterclaim. Citing multiple authorities, principally Sawyier v. Young, 198 Ill. App. 3d 1047 (1990), plaintiff argued that defendant's affirmative defenses and counterclaim were disallowed by section 9-106 of the Forcible Entry Act (735 ILCS 5/9-106 (West 2010)) because they were "not germane to the distinctive purpose of the proceedings," as that section provides. In an order dated November 9, 2010, the trial court granted the motions, but without explanation. The court struck the affirmative defenses and reassigned the counterclaim to another division of the circuit court.

¶ 13 Defendant argues on appeal that it was error to sever her counterclaim and strike her affirmative defenses. As we explain below, the trial court properly severed the counterclaim in its entirely but erred in striking the affirmatives defenses in their entirety.


¶ 15 The issue in this case, which appears to be one of first impression in Illinois, is whether, in an action brought under the Forcible Entry Act by the board of managers of a condominium property against a unit owner for possession of the unit due to unpaid assessments, the unit owner may claim as a defense that her responsibility for the assessments was diminished or nullified by the failure of the board to maintain the common elements of the property as required in the condominium instrument. Although there are no prior decisions on point, we hold, by analogy to the case law on actions brought under the Forcible Entry Act by landlords for possession of leased property due to unpaid rent, that the unit owner may claim neglect as a defense to the board's suit under the Act. We further hold, also by analogy to existing case law on suits under the Forcible Entry Act involving leased dwellings, that, with certain narrow exceptions, the unit owner may not counterclaim under the Forcible Entry Act for damages caused to her unit or to her personal property by the board's neglect of the common elements.

¶ 16 This issue involves consideration of what matters are "germane" under section 9-106 of the Forcible Entry Act. The meaning of a statute is a question of law, which we review de novo. See Lee v. John Deere Insurance Co., 208 Ill. 2d 38, 43 (2003). Our review also requires us to construe contractual provisions, a matter that is likewise subject to de novo review. Gallagher v. Lenart, 226 Ill. 2d 208, 219 (2007). In both instances, the aim is to discern the intent of the drafter, the best indicator of which is the language used. See Gallagher, 226 Ill. 2d at 233; Lee, 208 Ill. 2d at 43.

ΒΆ 17 Before we address the text of section 9-106, we first examine some preliminary sections of the FED Act. As to which persons may bring an action, the ...

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