THIRD DIVISION
March 31, 2010
No. 1-09-1235
THE BOARD OF DIRECTORS OF THE ) Appeal from the
WARREN BOULEVARD CONDOMINIUM ) Circuit Court of
ASSOCIATION, ) Cook County.
)
Plaintiff-Appellee, )
)
v. )
)
HILDA MILTON AND ANY AND ALL )
UNKNOWN OCCUPANTS, ) Honorable
) Sheldon C. Garber,
Defendant-Appellant. ) Judge Presiding.
JUSTICE QUINN delivered the opinion of the court:
The Plaintiff, board of directors of the Warren Boulevard Condominium Association, filed
a complaint in forcible entry and detainer against the defendant, Hilda Milton. The complaint
alleged that plaintiff was entitled to possession of a certain condominium unit owned by defendant
in Chicago, Illinois, because defendant failed to pay plaintiff $4,484 in assessments, plus all rents
accruing through date of trial and costs and reasonable attorneys fees.
Defendant denied that payments were owed and sought a jury trial. Defendant also
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requested discovery of certain records from plaintiff. Plaintiff sought compensation for use and
occupancy of the condominium, in the amount of the monthly assessment of $178, pending the
outcome of the forcible entry and detainer litigation. On February 10, 2009, the circuit court
granted plaintiff’s request and ordered defendant to pay plaintiff $178 per month pending the jury
trial. On April 14, 2009, the circuit court denied defendant’s motion to reconsider and applied
Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) language to its use and occupancy judgment.
Defendant now appeals. Although plaintiff has filed no brief on appeal, we will consider the
merits of the appeal under the standard set forth in First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133 (1976).
On appeal, defendant contends that the circuit court’s grant of use and occupancy to
plaintiff, pursuant to the Forcible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West
2008)), was erroneous because the statutory provision for use and occupancy does not apply to
plaintiff’s suit for possession of the condominium unit based on the owner’s failure to pay
assessments. Because the question of the proper interpretation to be afforded statutory provisions
is a question of law, our standard of review is de novo. Knolls Condominium Ass’n v. Harms,
202 Ill. 2d 450, 454 (2002).
We begin our analysis by examining the relevant statutory provisions of the Condominium
Property Act (765 ILCS 605/1 et seq. (West 2008)) and the Forcible Entry and Detainer Act (735
ILCS 5/9-101 et seq. (West 2008)), which set forth the appropriate procedure available to a
condominium association for remedying a default in the obligations of a unit owner. Sections
9(g)(1) and 9(h) of the Condominium Property Act provide that if a unit owner fails to make
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timely payment of common expenses, the amount due shall constitute a lien on the interest of the
unit owner in the property, which may be foreclosed upon by the board of managers of the
condominium association. 765 ILCS 605/9 (g)(1), (h) (West 2008). Section 9.2 of the
Condominium Property Act provides for further remedies as follows:
“Other remedies.
(a) In the event of any default by any unit owner, his tenant, invitee or guest in the
performance of his obligations under this Act or under the declaration, bylaws, or the rules
and regulations of the board of managers, the board of managers or its agents shall have
such rights and remedies as provided in the Act or the condominium instruments including
the right to maintain an action for possession against such defaulting unit owner or his
tenant for the benefit of all the other unit owners in the manner prescribed by Article IX
of the Code of Civil Procedure.” (Emphasis added.) 765 ILCS 605/9.2 (West 2008).
Section 9-102(a)(7) of the Code of Civil Procedure gives the board of managers of a
condominium association the authority to maintain a forcible entry and detainer action as follows:
“(a) The person entitled to the possession of lands or tenements may be restored
thereto under any of the following circumstances:
***
(7) When any property is subject to the provisions of the Condominium Property
Act, the owner of a unit fails or refuses to pay when due his or her proportionate share of
the common expenses of such property, or of any other expenses lawfully agreed upon or
any unpaid fine, the Board of Managers or its agents have served the demand set forth in
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Section 9-104.1 of this Article in the manner provided for in that Section and the unit
owner has failed to pay the amount claimed within the time prescribed in the demand
***.” 735 ILCS 5/9-102(a)(7) (West 2008).
In Knolls Condominium Ass’n, our supreme court rejected the condominium unit owner’s
argument that the condominium association did not have standing to bring an action under the
forcible entry and detainer statute for possession based on nonpayment of maintenance
assessments because it was not “a person entitled to possession” under the statute. Knolls
Condominium Ass’n, 202 Ill. 2d at 456-58. Our supreme court stated that section 9.2 of the
Property Condominium Act plainly provides that the board of managers of a condominium
association is entitled to maintain a cause of action for possession against a defaulting unit owner
under the forcible entry and detainer statute. Knolls Condominium Ass’n, 202 Ill. 2d at 456. The
court also noted that section 9-102(a)(7) of the Forcible Entry and Detainer Act intimates that the
board of managers is “a person entitled to possession” under the statute “when the property is
subject to the Condominium Property Act, the unit owner fails to pay his proportionate share of
common expenses, the unit owner is served with a demand, and the unit owner fails to pay within
the time prescribed in the demand.” Knolls Condominium Ass’n, 202 Ill. 2d at 456-57, citing 735
ILCS 5/9-102(a)(7) (West 2000).
Further, our supreme court opined that additional support for a condominium
association’s right to maintain a cause of action for possession is found in section 9-111 of the
Forcible Entry and Detainer Act. The court stated, “Other provisions of the statutory scheme
allow the board of managers to rent the condominium unit of which it has gained possession
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under the Code and to collect the rental funds therefrom until the amount owed by the unit owner
is satisfied, with possession eventually returning to the unit owner. See 735 ILCS 5/9-111(a), 9-
111.1 (West 2000).” Knolls Condominium Ass’n, 202 Ill. 2d at 457. The court also noted, “The
historical and practice notes for section 9.2 of the Condominium Property Act note that this
statutory procedure for collecting assessments has been in force for over 30 years and has
provided an efficient collection method.” Knolls Condominium Ass’n, 202 Ill. 2d at 457, citing
Ill. Ann. Stat., ch. 30, par. 309.2, Historical & Practice Notes, at 179-80 (Smith-Hurd Supp.
1991).
Defendant acknowledges the general applicability of the above-quoted statutes, which
allow a condominium association to maintain a forcible entry and detainer action where the unit
owner fails to pay his or her proportionate share of condominium assessments. Defendant argues,
however, that a condominium association is not entitled to an award of use and occupancy under
section 9-201 of the Forcible Entry and Detainer Act.
Section 9-201 provides: “The owner of lands, his or her executors or administrators, may
sue for and recover rent therefor, or a fair and reasonable satisfaction for the use and occupation
thereof, by a civil action ***, ” then lists five conditions upon which such recovery may be had.
735 ILCS 5/9-201 (West 2008).
Defendant argues that section 9-201 applies only to the landlord-tenant relationship and
because the board of the condominium association is not the “owner” of the condominium unit in
question, plaintiff had no standing to seek use and occupancy. As previously noted, section 9.2 of
the Condominium Property Act authorizes condominium associations to use the forcible entry and
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detainer procedures in Article IX of the Code to collect unpaid assessments from unit owners.
See 765 ILCS 605/9.2 (West 2008). Defendant relies on Jackson v. Reeter, 201 Ill. App. 29
(1915), in support of her argument that owners and renters of property should be treated
differently with respect to use and occupancy awards under the forcible entry and detainer statute.
In Jackson, the appellee had filed suit against the appellant to recover from the appellant
for the use and occupation of certain farm lands. The trial court entered judgment in favor of
appellee, and on appeal, the appellate court reversed. Jackson, 201 Ill. App. 29. The appellate
court explained, “At the common law, rents or compensation for use and occupation could not be
recovered except where the relation of landlord and tenant was shown to exist.” Jackson, 201 Ill.
App. at 31. The court stated, “The only statutory enactment that changes this common-law rule
is section 1 of Chapter 80, Rev. St. (J & A 7039), which provides: ‘That the owner of lands, his
executors or administrators may sue for and recover rent therefor, or a fair and reasonable
satisfaction for the use and occupation thereof, by action of debt or assumpsit, in any court of
competent jurisdiction, in any of the following cases:’ then follows a list of five conditions upon
which such recovery may be had.” Jackson, 201 Ill. App. at 31. The court noted that when one
party occupies the premises of another without any agreement for the payment of rent, “the law
implies a promise on the part of the occupant to pay the owner, for the use and occupation
thereof, a reasonable rental value.” Jackson, 201 Ill. App. at 32. The court explained that to be
entitled to recover upon the theory of an implied promise to pay reasonable compensation, “one
must be the owner of some estate in the premises and the possession of the other must not be
under claim of title or adverse to that of the owner or under an agreement that he need not pay
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rent.” Jackson, 201 Ill. App. at 32. The court found that “[a]ppellee was not the owner of the
land occupied by appellant, or of any estate in it while he was in possession. Nor did he recognize
[appellee] as having any right, title or interest in it. He held it adversely to [appellee].” Jackson,
201 Ill. App. at 32.
Unlike Jackson, the present issue does not involve a claim for rent where there was no
agreement between the parties and the party seeking rent held no interest in the land. Rather, the
condominium association brought a forcible entry and detainer action, as provided for by the
Condominium Property Act, based on defendant’s unpaid assessments and sought an award of
assessments from defendant during the pendency of the lawsuit. This court has previously noted,
“Such a claim [for condominium assessments] involves an implied or express contract just as a
claim for rent does.” Graue Mill Country Condominium Ass’n No. 1 v. Gary-Wheaton Bank, 213
Ill. App. 3d 698, 700 (1991). We can see no reason why the rationale permitting a party to
recover rent for use and occupation should not apply to permit a condominium association to
recover assessments due during the pendency of a forcible entry and detainer action.
For the above reasons, we affirm the judgment of the circuit court.
Affirmed.
STEELE and COLEMAN, JJ., concur.
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