The Illinois Supreme Court recently made life harder for condo owners. In Spanish Court Two Condominium Association v. Carlson, Spanish Court[“the Association”] filed a forcible detainer[i.e. eviction] action against Lisa Carlson who owned a unit in the building. The Association alleged that Carlson hadn’t paid monthly assessments for 6 months. The association wanted her out. Carlson admitted she hadn’t paid the assessments but denied they were owed. Carlson maintained that the roof hadn’t been properly maintained, which caused damage in her unit. Additionally, Carlson, alleged that while investigating a leak the Association had ruined one of her toilets – and never replaced it. As a result, Carlson felt[with some justification] that the Association had breached its maintenance responsibilities – so she wasn’t going to assessments.

In evictions actions under the Forcible Entry and Detainer Act, 735 ILCS 5/9-101, only matters “germane” to possession and or amounts owed may be considered. So the Association moved to strike Carlson’s defenses and sever her claims – on the grounds they were not “germane”. The trial court agreed and struck the defenses and severed the other claims for assignment to another judge. Then the trial court awarded possession of the unit and a money judgment to the Association.

Carlson appealed the trial court ruling on her defenses. On appeal, the Appellate Court ruled that a condo owner is permitted to withhold assessments if the association isn’t maintaining the common areas. The Appellate Court then kicked the case back down to the trial court. The Association then appealed to the Illinois Supreme Court – solely on the issue of whether a failure to maintain or repair common elements is germane in an eviction action against a condo owner who didn’t pay his or her assessments. Seems pretty simple. Assessments pay, in part anyway, for common area upkeep. If the association isn’t maintaining those areas, why should a condo owner keep paying?

The Supreme Court however, didn’t see it quite that way. The Court looked closely at the Illinois Condominium Act and decided that there are important differences between tenants and condo owners. For example when a tenant is evicted, that tenant no longer has any possessory right. But an evicted condo owner is still an owner – and still has to pay the monthly tab. And under the Act, a condo’s owner’s duty to pay assessments is NOT contingent upon maintenance of the common areas. Huh?

Bottom line? Carlson was not allowed to assert the Association’s failure to keep the place up as a defense in the eviction case. The failure of an association to maintain common areas is not a “germane” issue in an eviction case. Again, not a very good decision for condo owners.