Posts Tagged ‘assessments’
The February 2016 decision of the First District Illinois Appellate Court in Stobe v 842-848 West Bradley Place Condominium Association has cast some doubt on the ability of an Illinois condominium board to limit leasing of units through its rule making authority. Article VII of the declaration in Stobe covered the “sale, leasing or other alienation” of units. It contained a statement that if a proposed unit tenant agreed to abide by the declaration, the board’s rules and the Condominium Property Act, the board would have no right of first refusal.
The leasing article of the Stobe declaration did impose specific restrictions on leasing for hotel or transient purposes or for terms of less than six months and imposed limitations on leases of parking spaces. The article did not expressly refer to the right of the condominium board to regulate leasing by rule. The court then stated: “With that said, article VII did not expressly state that owners had the right to lease their units either.”
The appellate court in Stobe affirmed the trial judge’s grant of summary judgment striking down the attempt of the condominium board to restrict leasing by rule, interpreting the declaration’s intent to be that owners had the right to lease their units without restrictions other than those specifically enumerated in the declaration. The Stobe court said: “As stated, the declaration expressed certain limitations on leasing. If owners had no right to lease their units, the enumerated limitations would be meaningless.”
The court went on to point out: “The article on leasing did not specify that it was subject to further regulation by the Board, unlike other provisions in the declaration that did. While this omission would not alone require a determination that owners possess leasing rights, the declaration’s intent is clear when considered in its entirety: Unit owners have the right to lease their units subject to the declaration’s limitations.”
Feel free to contact a Logan Law, LLC condominium attorney, if you have any questions regarding the ability of your condominium board to impose rules restricting leasing or if you need assistance or advice regarding other areas of condominium law.
The Illinois Supreme Court has affirmed the Appellate Court’s 2014 decision in 1010 Lake Shore Drive Condominium Association v Deutsche Bank, which had held that an Illinois Condominium Association’s right to collect pre-foreclosure assessments is not necessarily wiped out by the confirmation of the foreclosure sale. The Supreme Court held that the assessment lien for pre-foreclosure assessments is only extinguished if two things occur, (i) the foreclosing lender names the condominium association as a party to the foreclosure suit and (ii) the purchaser at the foreclosure sale pays the assessments as they accrue beginning the month following the foreclosure sale.
The Supreme Court held that the payment of assessments after the foreclosure sale is essential “to confirm the extinguishment of the lien created by the prior owner’s failure to pay assessments.” The Supreme Court emphasized that the Illinois Condominium Act protects mortgage lenders by allowing the lender “from time to time (to) request in writing a written statement *** setting forth the unpaid common expenses with respect to the unit covered …” by the loan. Associations are cautioned to respond promptly to any such request to avoid giving a lender a possible defense to an action for pre-foreclosure assessments.
Associations with units delinquent in assessments which are being foreclosed are advised to consult legal counsel in order to make sure they recover the maximum amount of delinquent assessments available in this change area of the law. Feel free to contact a Logan Law, LLC condominium attorney, if you have any questions regarding collection of delinquent condominium assessments or if you need assistance or advice regarding other areas of condominium law.
Illinois condominium associations have an extremely effective tool for collecting assessments from delinquent condominium unit owners. In Illinois, a condominium association can actually evict a unit owner from his or her unit and then lease the unit out and collect the rents from the unit to pay for past due assessments, the legal expenses of pursuing the eviction as well as currently accruing assessments. The association does not have to pay the mortgage payments or real estate taxes which accrue while the rents are being applied against assessments and expenses of collection.
The condominium eviction process takes four months or more, so associations need to be diligent in asserting their rights. This is especially true in that unit owners who are delinquent in paying their assessments often are also delinquent in making their mortgage payments, eventually resulting in mortgage foreclosure.
To move forward with a condominium eviction, the association must first prepare and serve a 30 day notice and demand for possession. This notice must be mailed to the unit owner by certified mail. When thirty days have passed without the assessments having been paid, the eviction suit may then be filed. The suit is filed as what is called a “joint action”, which seeks a personal judgment against the unit owner as well as an order of possession (eviction order). When the matter reaches trial, the eviction statute requires the court to stay the enforcement of the eviction order for at least sixty days. Only then may the association employ the Sheriff to secure possession of the unit.
Feel free to contact a Logan Law, LLC condominium attorney, if you have any questions regarding the rights and responsibilities of delinquent Illinois condominium association unit owners, regarding collection of delinquent condominium assessments or if you need assistance or advice regarding other areas of condominium law.
There are risks to buying a condominium in an existing condominium association, as the financial condition of the association will determine whether future maintenance and replacement needs of the condominium property will require large future special assessments. Because of this, the Illinois legislature created section 22.1 of the Condominium Property Act.
Under section 22.1, a condominium unit purchaser may request and the seller must obtain from the condominium board copies of the declaration and by laws and any rules and regulations and information about any pending lawsuits or judgments, as well as the following:
1. A statement of any liens, including a statement of the account of the unit being purchased setting forth the amounts of unpaid assessments and other charges.
2. A statement of any capital expenditures anticipated by the association within the current or succeeding two fiscal years.
3. A statement of the status and amount of any reserve for replacement fund and any portion of such fund earmarked for any specified project by the Board.
4. A copy of the statement of financial condition of the association for the last fiscal year for which such statement is available.
5. A statement setting forth what insurance coverage is provided for all unit owners by the association.
Feel free to contact an Illinois attorney experienced in handling all aspects of real estate closings for both buyers and sellers at Logan Law, LLC if you have questions about condominium law or the sale of your Chicago area real estate or any other area of the laws governing the purchase or sale of real estate.
Several legislative changes have been made in the Illinois Condominium Property Act, effective with the beginning of 2015.
In one important change, an Illinois condominium association’s rights with respect to a unit obtained in an eviction proceeding have been both improved as well as clarified. Under the new rules, an association which obtains possession of a unit in an assessment eviction proceeding has eight months after the month in which the end of the stay of enforcement of the eviction order occurs to lease the unit. The lease of the unit may be as long as 13 months. If the association fails to enter into a lease commencing within the eight month period or if the rents received within the lease period are not sufficient to make the association whole, the association must obtain approval from the eviction court to enter into a new lease or extend an old lease.
The association may, with interim court approvals as noted above, continue to lease the unit until it has collected 100% of past due assessments, statutory interest (at 9% per annum) under the unpaid judgment amount, attorney’s fees and court costs incurred in the eviction action, reasonable expenses necessary to make the unit rentable and finally all new assessments and other proper charges which accrue during the period after the eviction judgment was obtained. The eviction court retains jurisdiction to determine the reasonableness of expenses of re-renting the unit.
If you have any questions about condominium association assessment collection or other aspects of Illinois condominium law, Logan Law, LLC can give you the answer. Feel free to contact Logan Law, LLC at any time.