The Forcible Entry and Detainer Act provides associations with the right to take possession of a unit when an owner fails to pay assessments and other common expenses to the association. If the association received a judgment and an order for possession, it can evict the owner from the unit. If the conditions of the unit are warranted, the association can place a tenant in the unit in hopes of paying down what is owed. In order for possession to be restored, the owner must pay the association. The question is, what must be paid and when? The First District of the Illinois Court of Appeals has helped answer those questions in the case of State Place Condominium Association v. Magpayo .
In this case, an owner, Crixenia Magpayo, failed to pay assessments to State Place Condominium Association (State Place) and it sued her. Magpayo filed numerous motions trying to attack the judgment, all of which were denied by the court. She was eventually evicted from the unit and State Place signed a lease with a tenant for the unit. Prior to the tenant occupying the unit, Magpayo filed an emergency motion claiming that she was prepared to provide payment of the judgment plus some post-judgment assessments, but did not pay attorneys’ fees incurred after the judgment was entered. The court denied Magpayo’s emergency motion, finding that payment in full had not been paid and that State Place had previously entered into a lease.
The appellate court specifically ruled that a condo owner must pay post-judgment attorneys’ fees in order to vacate the association’s order for possession. In doing so, it rejected 30-year-old precedent finding that Section 9.2 of the Condominium Property Act  specifically included attorneys’ fees as being part of an owner’s share of the common expenses.
The court also found that the owner failed to provide any information that the association had not entered into a lease with a tenant for the unit. Under the Forcible Entry and Detainer Act, if the association enters into a lease with a tenant, the order for possession can only be vacated concurrently with the end of the lease – the owner cannot displace the tenant by paying in full. Since Magpayo could not provide any information that State Place failed to enter into a lease even though one was shown to the court and to Magpayo’s attorney, the court ruled against Magpayo.
This case provides good ammunition for associations as part of the collection process. It is clear that the association can enter into leases with tenants without fear that payment in full by the owner will cause a breach of contract with the tenant. This will make renting from associations more effective.
Unfortunately, the court’s reasoning as it related to post-judgment attorneys’ fees may only benefit condo associations. While Section 9.2 of the Condominium Property Act  provides that attorneys’ fees are part of an owner’s share of the common expenses, there is no similar provision for non-condos. We expect that owners in non-condos will continue to argue that they are not required to pay post-judgment attorneys’ fees in order to vacate an order for possession.