dissenting:
I respectfully dissent. The majority reasons that by use of the principle inclusio unius est exclusio alterius, or the inclusion of one is the exclusion of the other, the legislature intended that section 12— 903 of the homestead statute as it appears in the Code bar the use of a forcible entry and detainer action by a condominium association against a unit owner for unpaid maintenance assessments. In the majority’s view, the language of section 12 — 903 of the homestead statute trumps the specific language of both the Condominium Property Act and the forcible entry and detainer statute (735 ILCS 5/9 — 101 et seq. (West 2000)). The majority’s analysis produces a statutory disharmony that the legislature could not have intended.
Courts presume that two or more statutes which relate to the same subject are governed by one spirit and policy and that the legislature intended the statutes to be operative and harmonious. Henrich v. Liberty High School, 186 Ill. 2d 381, 391-92 (1998). Therefore, statutes relating to the same subject matter must be compared and construed with reference to one another so that effect may be given to the provisions of each, if reasonable. Carter v. Du Page County Sheriff, 304 Ill. App. 3d 443, 450 (1999).
Section 9- — 102(a)(7) of the forcible entry and detainer statute provides that a forcible entry and detainer action can be maintained “[w]hen any property is subject to the provisions of the Condominium Property Act [and] 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 if the unit owner fails to comply “by the declaration, bylaws, and rules and regulations of the condominium.” 735 ILCS 5/9— 102(a)(7) (West 2000). Section 9.2 of the Condominium Property Act provides:
“In the event of any default by any unit owner *** 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 *** including the right to maintain an action for possession against such defaulting unit owner *** for the benefit of all the other unit owners in the manner prescribed by Article IX of the Code of Civil Procedure.” 765 ILCS 605/9.2 (West 2000).
Article IX of the Code of Civil Procedure is the forcible entry and detainer statute.
The accompanying historical and practice notes for section 9.2 state, inter alia,-.
“This section was added by PA. 77 — 1760, effective July 1, 1972, as part of a legislative package which also included PA. 77 — 1759 which added the procedures applicable to condominiums to the Forcible Entry and Detainer Act. ***
This section makes Illinois unique in allowing a condominium association to evict a unit owner for failing to pay assessments. When such action occurs, the unit owner maintains title to the unit and the association has the right to possession of the unit until the judgment for possession is vacated after the amount owed is paid.
This section was adopted to provide a constitutionally permissible, quick method for collection of assessment arrearages in condominium associations, and it has provided one of the better collection procedures found in any state.” 765 ILCS Ann. 605/9.2, Historical & Practice Notes, at 58-59 (Smith-Hurd 1993).
In my view, section 9 — 102(a)(7) of the forcible entry and detainer statute and section 9.2 of the Condominium Property Act specifically address what is at issue in the instant case, i.e., a remedy when an owner fails to pay assessments.
The majority’s opinion ignores that the Condominium Property Act, the forcible entry and detainer statute, and the homestead statute relate to the same subject matter and constitute a statutory scheme. I do not believe that where the legislature specifically provided for a procedure for evicting a unit owner who fails to pay her assessments, it then intended to eliminate this remedy by not specifically listing it in section 12 — 903 of the homestead statute as one of the exceptions to the applicability of an estate of homestead. Such an interpretation would render both section 9 — 102(a)(7) of the forcible entry and detainer statute and section 9.2 of the Condominium Property Act meaningless. As noted in the historical and practice notes concerning section 9.2 of the Condominium Property Act, the purpose of the section was to provide condominium associations with a “constitutionally permissible, quick method” for collection of unpaid assessments. Under the majority’s position, a condominium unit owner could raise the defense of an estate of homestead every time a condominium association attempted to bring a forcible entry and detainer action to collect assessment arrearages.
Moreover, I do not believe it is inconsistent with the purpose of section 12 — 903 of the homestead statute to allow an action for forcible entry and detainer against a unit owner. Section 12 — 903 pertains to exceptions to an estate of homestead when a sale of the property is involved. Here, the sale of property was not involved. Plaintiff did not seek the sale of defendant’s property but only sought possession of it until defendant paid her past-due maintenance assessments. The historical comments to section 9.2 of the Condominium Property Act make it clear that, when a forcible entry and detainer action occurs, the unit owner maintains title to the unit and the condominium association has the right of possession until the assessment amount owed is paid. Consequently, I would not conclude, as has the majority, that the principle of inclusio unius est exclusion alterius applies here because a forcible entry and detainer action is not listed in section 12 — 903 of the homestead statute as one of the instances under which an estate of homestead will not be exempt from sale of the property.
When the plain language of more than one statute is relevant to a given action, courts must determine which statute is more specifically applicable to the case at hand. Scalise v. Zarate, 303 Ill. App. 3d 718, 723 (1999). Here, I believe section 9 — 102(a)(7) of the forcible entry and detainer statute and section 9.2 of the Condominium Property Act are more specifically applicable to the case at hand than section 12— 903 of the homestead statute. I find support for my position in the historical and practice notes set forth above. The purpose of section 9.2 of the Condominium Property Act is to provide a condominium association with a permissible and quick method for collecting unpaid assessments. That statute is specifically applicable to the instant case where the condominium association sought to evict a unit owner for failure to pay past-due maintenance assessments.
Accordingly, I would affirm the trial court’s judgment.