Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. 009 M1 715439. Honorable George F. Scully, Judge Presiding.
Reversed and remanded.
Where plaintiff condominium association was placed in possession of defendant's unit pursuant to a forcible entry and detainer action after defendant failed to pay assessments for common expenses and the association retained an agent to rent the unit and use the rent to pay the assessments, but the agent absconded with the rent, the trial court erred in reinstating defendant to possession based on findings that defendant's account was satisfied, since no evidentiary hearing was conducted and no basis existed for the findings, and, furthermore, the trial court improperly placed the burden of proving the debt had been paid on plaintiff, rather than defendant, and considered issues collateral to the association's forcible entry and detainer action.
For PLAINTIFF-APPELLANT: Andrew A. Girard, Bradley J. Rettig, THE GIRARD LAW GROUP, P.C., Chicago, Illinois.
For DEFENDANT-APPELLEE: Marvin L. Husby III, Chicago, Illinois.
JUSTICE CONNORS delivered the judgment of the court, with opinion. Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.
Plaintiff Gotham Lofts Condominium Association won a judgment of possession for defendant Donald Kaider's condominium property due to defendant's failure to pay assessments for common expenses. Defendant later filed a motion to vacate the judgment, asserting that his delinquent account had been satisfied because plaintiff leased the property to a tenant after the judgment. The circuit court agreed and, among other relief, ordered defendant to be reinstated into possession. We reverse and remand.
Taking possession of condominium property is one of the most powerful remedies that a condo association has available when owners fail to pay their assessments, but the process is under firm statutory control. See generally 765 ILCS 605/9.2 (West 2010) (remedies available for nonpayment of assessments); 735 ILCS 5/9-101 et seq . (West 2010) (forcible entry and detainer actions); see also generally Knolls Condominium Ass'n v. Harms, 202 Ill.2d 450, 781 N.E.2d 261, 269 Ill.Dec. 464 (2002) (discussing the contours of this type of action). When a condo association wins a judgment in a forcible entry and detainer action against a condo owner, the association is entitled to possession of the property until the property owner pays all current and back assessments as well as all costs and attorney fees associated with the forcible entry and detainer action. See 735 ILCS 5/9-111(a) (West 2010). After taking possession, the association has the option (but not the obligation) of leasing the property to a bona fide tenant for up to 13 months, which may be extended by order of court if the association is still entitled to possession at the end of the lease term. If the association chooses to lease the property, then it must apply all rental income to the owner's account. When all outstanding assessments, attorney fees, and court costs have been satisfied, the owner is entitled to any surplus in the rent received and may regain possession of the property at the end of the lease term. See 735 ILCS 5/9-111.1 (West 2010).
Plaintiff won a judgment of possession against defendant in September 2009, and it took possession of the property in March 2010. Plaintiff decided to lease the property in order to recoup defendant's delinquent account, which by that point was about $5,800 and included all back assessments, attorney fees, and court costs associated with the forcible entry and detainer action. Plaintiff turned the property over to its property manager, Phoenix Rising Management Group, Ltd., which then located a tenant and negotiated a lease. Plaintiff entered into the lease with the tenant in April 2010, for a monthly rent of $1,450.
About six months later, however, plaintiff discovered some serious irregularities in its accounts, which led plaintiff to fire Phoenix Rising. Plaintiff hired a ...