ISBA Statehouse Review for the week of January 26, 2016

ISBA Director of Legislative Affairs Jim Covington reviews legislation in Springfield of interest to ISBA members. This week he covers Condominium Property Act (House Bill 4489), Condominium Property Act (House Bill 4490) and Forcible Entry and Detainer (House Bill 4491). More information on each bill is available below the video.

Condominium Property Act. House Bill 4489 (Drury, D-Highwood) makes a number of changes to this Act, which are as follows. (1) Contains a statement of public policy that a unit owner has the right to fairness in litigation or other legal action regardless whether the unit owner instigates it or the association does. (2) Allows a unit owner to bring a legal action against the association or its board of managers to enforce individual or common-interest community rights without being required to sue other homeowners or otherwise name them as defendants. Any cost to provide a notice to unit owners is to be paid by the association and may not be assessed against the unit owner bringing the action. (3) Voids as a matter of public policy any provision of any condominium instrument or any rule or regulation seeking to limit a unit owner’s right to commence litigation against an association or its board of managers or to limit the liability of an association or its board of managers for a breach of duty. (4) Provides that a unit owner’s compliance with an association’s demand does not waive the unit owner’s right or ability to challenge the demand in a legal action commenced later. (5) Requires a unit owner to be awarded reasonable attorney’s fees to enforce this Act (a) to the extent the unit owner prevails as a plaintiff; or (b) the unit owner as defendant prevails on any affirmative defense or counterclaim for a breach by the association or its board of managers for an obligation under this Act, condominium instruments, rules and regulations, or another applicable statute or ordinance. (6) Requires the association be awarded its reasonable attorney’s fees to enforce this Act but that the court may reduce the award or in part or entirely if: (a) the court finds that the legal action benefited the association by clarifying its duties; or (b) based on other equitable considerations. (7) Bars the association from recovering any attorney’s fees and costs in a claim brought under the Forcible Entry and Detainer Article of the Code of Civil Procedure if the unit owner prevails based on a breach of duty by the association or by any member of its board of managers. (8) Provides that in litigation, the association is required to represent the best interests of all unit owners and the association without regard to the wishes of the board of managers. (9) Provides that the association may not be represented in litigation by counsel who also represents the association’s board of managers either individually or collectively. Introduced and referred to House Rules Committee.

Condominium Property Act. House Bill 4490 (Drury, D-Highwood) allows an association to add to a unit owner’s part of the common expense for default of some duty (as required by statute, ordinance, or condominium instruments) but only if a court first awards the association its attorney fees. Repeals current law that automatically allows the association to add these fees in the unit owner’s share of the common expense. Introduced and referred to House Rules Committee.

Forcible Entry and Detainer. House Bill 4491 (Drury, D-Highwood) amends this Article for actions for possession for unpaid condominium expenses. A unit owner may raise as defenses: (1) a material breach of any duty set forth in the Condominium Property Act, governing condominium instruments, rules and regulations, or any applicable statute or ordinance applicable to the unit owner’s possession of the condominium unit; or (2) an improper motive for bringing the action. It also bars an association from recovering any attorney’s fees and costs against a unit owner if the association is found by a court to have breached an obligation under this Article or the Condominium Property Act; or in the case of any member of the association’s board of managers, he or she is found to have breached a fiduciary duty to the unit owner or the association. Introduced and referred to House Rules Committee.