RECENT DEVELOPMENTS IN ILLINOIS LAW: WHAT TO KNOW IF YOU ARE SELLING A CONDOMINIUM

Condominium properties in Illinois are generally governed by the Illinois Condominium Property Act, 765 ILCS 605/1 et seq (the “Condo Act”).  The Condo Act sets standards for what is allowed by both condominium owners, and the associations of which the owners are members.  A relative recent case in Illinois provides an important interpretation of the Condo Act.  It is known as Harry Channon v. Westward Management, Inc. and is cited as 2022 IL 128040.  The Court’s opinion was filed on November 28, 2022 by the Supreme Court of the state of Illinois.

Channon revolves around rules as to the owner of a condominium when he or she sells the unit.  Condominium sellers are almost always required to provide certain condominium documents related to the association to the buyer.  The documents often include the condominium declaration and bylaws.  Naturally, the condominium association charges fees to provide the seller with these documents.  It is usually the condominium seller that bears these fees at the real estate closing.

In Channon, the Supreme Court decided whether the Condo Act provides an implied cause of action in favor of a condominium unit seller against the association, the association’s property management company, or even the association’s board of directors, based on allegations that the latter parties charged excessive fees for the production of the required documents.  The Court stated that it would construe the Condo Act in order to ascertain and effectuate the legislative intent by applying the plain language contained within the Act.

The Illinois Supreme Court found that the Condo Act does not create an implied private right of action by a condominium unit seller against an agent of the condominium association, or the association’s board of managers, for charging allegedly excessive fees.

In making its decision, the Supreme Court applied its test from Metzger v. DaRosa, 209 Ill.2d 30, 36 (2004).  This is a four factor test that determines whether 1) plaintiffs are members of the class that the statute was intended to benefit, 2) the statute was designed to prevent the plaintiffs from suffering the incurred injury, 3) the statute’s purpose is consistent with the creation of a private right of action, and, 4) it is necessary to imply a private right of action to provide an adequate remedy for the statutory violation.

The Illinois Supreme Court’s decision hinged on who the Condo Act was attempting to protect when it defined the documents that condominium sellers had a duty to disclose.  The Court decided that the requirements are not a protection for the condominium seller, but for the condominium buyer.  As a result, the first element of Metzger test was not met.

The Court also noted that a certain standard must be met to imply a private right of action in a statute, including the Condo Act.  The Court would take this step only when it is clearly needed to advance the statute’s purpose and when the statute would be practically ineffective unless a private right of action was implied.  In Channon, this “high” bar was not overcome.

As a result, if you are the seller of a condominium, you may be unhappy with the fees that the association charges for you to provide required documents to the buyer.  Unfortunately, under current Illinois law, you probably do not have a legal remedy.

Nevertheless, if you need information or assistance in selling a condominium unit, local attorney Andrew Szocka provides thorough and speedy real estate assistance in the Chicagoland area.  To schedule a free initial consultation, visit Andrew Szocka, P.C. online or call the office at (815) 455-8430.

EJECTMENT: THE STATUTE AND CASE LAW BEHIND THE CAUSE OF ACTION

An ejectment action can be a useful tool to help a client recover real estate when another party is wrongfully in possession.  Ejectment is based in statutory law.  See 735 ILCS 5/6-101, et seq.

A complaint for ejectment must contain certain allegations.  735 ILCS 5/6-109.  Plaintiff must plead that 1) he had possession of the premises after obtaining legal title, 2) defendant subsequently took possession of the premises, 3) at present, defendant continues to unlawfully hold possession from the plaintiff, and any damages suffered by plaintiff as a result of the ejectment, which could even be a nominal sum.  Id.

The complaint must also describe the property with sufficient certainty.  735 ILCS 5/6-110.  This may be as simple as the property’s common address.  However, it is probably safer to include the property’s legal description and parcel identification number.  At least one older Illinois case held that a legal description was sufficient to identify the property.  See Parr v. Horn, 38 Ill. 226 (1865).

Other Illinois case law on ejectment has stated that a “a plaintiff in ejectment must recover on the strength of his own title rather than the weakness of his adversary’s title.”  Bulatovic v. Dobritchanin, 252 Ill.App.3d 122, 128-29 (1^st Dist. 1993).  In other words, plaintiff’s interest must be “higher and better” than that of defendant.  Whitham v. Ellsworth, 259 Ill. 243, 246 (1913).

The best way for plaintiff to prove an interest in the property may be with a recorded conveyance.  Bulatovic, 252 Ill.App.3d at 128.  Bulatovic states that the plaintiff “must show proof of title under a deed sufficient to entitle him to possession.”  Id.  However, the ejectment statute provides for an action brought by an heir or legatee.  735 ILCS 5/6-102.  So, it is at least necessary for the plaintiff to show a link between himself and the holder of the property’s legal title.  Department of Conservation ex rel. People v. Fairless, 273 Ill.App.3d 705, 711 (5^th Dist. 1995).

As far as proof of defendant’s possession, it is not necessary for the plaintiff to prove this element for ejectment unless the defendant files a verified answer that specifically denies possession.  735 ICLS 5/6-118.

Note that ejectment can apply to defendant’s unauthorized possession of an entire parcel of property, or only a portion of the parcel.  See Tatham v. Fields, 2013 IL App (5^th) 130179-U.

In Tatham, plaintiff permitted defendant to put a temporary boat lift on plaintiff’s property, but specifically prohibited defendant from installing the lift as a permanent structure.  Id. at ¶ 10.  Despite this instruction, defendant upgraded the boat lift to become permanent.  Id. at ¶ 11.  Plaintiff demanded that defendant remove the structure from his property.  Id. at ¶ 13.  Defendant refused and plaintiff filed an ejectment action to remove defendant’s possession from that portion of plaintiff’s property.  Id. at 4.  The court granted plaintiff’s ejectment request.  Id. at ¶ 33.

Although grounded in statutory law, there are a number of Illinois cases related to ejectment that further interpret the ejectment statute and provide guidance for an attorney looking to successfully plead and prove an ejectment action.

For additional reading on ejectment actions see:

Cree Development Corp. v. Mid-America Advertising Co., 294 Ill.App.3d 324 (5^th Dist. 1997);

Parks v. Parks, 2019 IL App (3d) 170845;

Dagit v. Childerson, 391 Ill. 611 (1945).

Law Office of Andrew Szocka, P.C. can be contacted online or by phone at (815) 455-8430.

EJECTMENT LAWSUITS: OR, “GET OFF MY PROPERTY.”

In Illinois, it is not unusual for two or more parties to fight over who is the rightful owner of real estate, and as the owner has the right to possession of that real estate.  When this happens, one party may file a lawsuit for “ejectment.”

An ejectment action asks a court to determine the property’s rightful owner.  If the party possessing the land is determined to not be the rightful owner, the court will “eject” that party from the property so that the rightful owner can take possession.

The party bringing the ejectment litigation is called the “Plaintiff.”  The Plaintiff must demonstrate to the court that he obtained title to the property and subsequently took possession of that property.  Then, that the other party, called the “Defendant” took possession of the land.  Finally, the Defendant continues to unfairly possess the property by occupying it.

The best way for a Plaintiff to show a court that he obtained lawful title to property is to produce a deed that conveys the property to the Plaintiff.  However, there may be other ways for the Plaintiff to establish that his right to possession of the property is “better” than that of the Defendant.  It is a good idea to consult an attorney if you believe you have right to possession of land that another party is occupying.

Keep in mind that the other party’s improper possession may not be total possession of your property, but only a portion of that property.  For example, if your neighbor were to build something on your property without your permission, an action for ejectment may be appropriate.  Your neighbor is possessing your whole property, but he is unlawfully possessing a portion of it.

Having a good attorney can help further understand if an ejectment lawsuit may be appropriate in a certain situation.

Local attorney Andrew Szocka is experienced in many real estate matters, including ejectment actions.  In addition, Andrew provides thorough and speedy estate planning, probate, and business organization help in the Chicagoland area.  To schedule a free initial consultation, visit the Law Office of Andrew Szocka, P.C. online or call the office at (815) 455-8430.