                                          2014 IL 115342



                                     IN THE
                                SUPREME COURT
                                       OF
                              THE STATE OF ILLINOIS



                                       (Docket No. 115342)

                  SPANISH COURT TWO CONDOMINIUM ASSOCIATION,
                         Appellant, v. LISA CARLSON, Appellee.


                Opinion filed March 20, 2014.—Rehearing denied June 19, 2014.



            JUSTICE THEIS delivered the judgment of the court, with opinion.

           Chief Justice Garman and Justices Thomas and Karmeier concurred in the
        judgment and opinion.

            Justice Freeman dissented, with opinion, joined by Justices Kilbride and Burke.

            Justices Freeman, Kilbride and Burke dissented upon denial of rehearing, without
     opinion.



                                             OPINION

¶1          This appeal arises out of a forcible entry and detainer action filed by a
        condominium association against one of its unit owners based on unpaid assessments.
        At issue is whether an association’s purported failure to repair or maintain the common
        elements is germane to the proceeding, and thus may be raised by the unit owner in
        defense of the forcible action. We hold that it is not germane to the forcible proceeding,
        and thus reverse, in part, the judgment of the appellate court. 2012 IL App (2d) 110473.
¶2                                        BACKGROUND

¶3       In February 2010, in the circuit court of Lake County, plaintiff, Spanish Court Two
     Condominium Association (Spanish Court), filed a complaint under the Forcible Entry
     and Detainer Act (forcible statute) (735 ILCS 5/9-101 et seq. (West 2008)) against
     defendant, Lisa Carlson (Carlson), one of the association’s unit owners. Spanish Court
     alleged that Carlson had failed to pay monthly assessments for the preceding six
     months, and sought a money judgment and an order of possession. In her answer to the
     complaint, Carlson admitted that she had not paid her assessments since August 2009.
     Carlson denied, however, that she owed those assessments, alleging that she incurred
     water damage to her unit because Spanish Court failed to properly maintain the roof
     directly above her unit. Carlson also alleged, without providing specifics, that Spanish
     Court “destroyed property within her unit without justification.”

¶4       Carlson also asserted two affirmative defenses, entitled “Breach of Covenants” and
     “Set-Off.” In her first affirmative defense, Carlson alleged that Spanish Court failed to
     maintain the roof and brickwork directly above her unit, resulting in water damage to
     her unit. Carlson additionally alleged that Spanish Court failed to repair or replace a
     toilet in her unit that was rendered inoperable during the investigation of a water leak in
     an adjoining unit. Carlson claimed that such conduct by Spanish Court constituted a
     breach of its duties set forth in the condominium declaration, and that Spanish Court
     was estopped as a matter of law from seeking payment for the monthly assessments. In
     her second affirmative defense, Carlson relied on the same allegations and requested a
     set-off against any money judgment entered against her on Spanish Court’s complaint.
     Carlson also filed a counterclaim in which she sought money damages based on the
     same allegations set forth in her affirmative defenses.

¶5       Spanish Court moved to strike Carlson’s affirmative defenses and to sever her
     counterclaim, arguing that they were not “germane” to the proceeding, as required by
     the forcible statute. See 735 ILCS 5/9-106(a) (West 2008). The trial court granted
     Spanish Court’s motion, striking Carlson’s affirmative defenses and ordering that
     Carlson’s counterclaim be reassigned to the proper division of the circuit court.
     Thereafter, the trial court entered an agreed order awarding possession of Carlson’s
     unit to Spanish Court, and a money judgment for unpaid assessments through January
     1, 2011. The matter then proceeded to a bench trial as to Spanish Court’s claim for
     unpaid special assessments, accrued assessments not covered in the prior order, late

                                              -2-
     charges, attorney fees, and costs. After disallowing a special assessment and certain
     attorney fees and costs, the trial court entered its final order again awarding Spanish
     Court possession, and a money judgment covering all sums due through April 2011.

¶6       Carlson appealed, challenging the trial court’s order striking her affirmative
     defenses and severing her counterclaim, as well as the subsequent orders granting
     Spanish Court possession and a money judgment. Spanish Court cross-appealed,
     challenging the trial court’s disallowance of one of its special assessments.

¶7       The appellate court vacated the judgment of the trial court, and remanded the case
     for partial reinstatement of Carlson’s affirmative defenses. 2012 IL App (2d) 110473,
     ¶ 48. The appellate court held that a unit owner may claim, as a defense to a forcible
     action based on unpaid assessments, that her responsibility to pay assessments was
     diminished or nullified by the failure of the association to repair or maintain the
     common elements. Id. ¶¶ 16, 28, 46. The appellate court reasoned that if a tenant could
     raise, as an affirmative defense in a forcible proceeding, the landlord’s failure to
     maintain the leased premises, a condominium unit owner should also be able to raise as
     an affirmative defense the association’s failure to repair and maintain the common
     elements. Id. ¶¶ 26, 46. The appellate court viewed the obligation to pay assessments,
     and the obligation to repair and maintain the common elements, as mutually exchanged
     promises, and concluded that under principles of contract law, a material breach of the
     repair obligation could warrant nonpayment of assessments. Id. ¶¶ 27-28. The
     appellate court acknowledged that its holding placed Illinois in the small minority of
     jurisdictions that permit a unit owner to claim an offset to assessments based on a
     failure to repair and maintain the common elements. Id. ¶ 63.

¶8       The appellate court also determined that the particular failure to repair and maintain
     the common elements alleged by Carlson was germane to Spanish Court’s action for
     possession because “it affects the basic comfort of the dwelling.” Id. ¶¶ 29-30. The
     appellate court remanded the matter for reinstatement of those parts of Carlson’s
     affirmative defenses that were based on Spanish Court’s alleged failure to repair and
     maintain the roof and brickwork above her unit, which are common elements, but not
     those parts of her affirmative defenses based on Spanish Court’s alleged failure to
     repair or replace her toilet, which is not a common element. Id. ¶ 48. In light of this
     disposition, the appellate court declined to consider the parties’ various claims of trial
     error, including Spanish Court’s claim raised in its cross-appeal that the trial court
     erred in disallowing a special assessment. Id. ¶ 49.


                                             -3-
¶9         As to Carlson’s counterclaim, the appellate court held that it was not germane to the
       forcible proceeding because it sought nothing but monetary relief. The appellate court
       therefore affirmed the trial court’s order severing the counterclaim. Id. ¶ 48.

¶ 10        We allowed Spanish Court’s petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff.
       Feb. 26, 2010)), and allowed the Community Associations Institute - Illinois Chapter to
       file an amicus curiae brief in support of Spanish Court (Ill. S. Ct. R. 345 (eff. Sept. 20,
       2010)).



¶ 11                                              ANALYSIS

¶ 12       The only issue before this court is whether an association’s purported failure to
       repair or maintain the common elements is germane to a forcible entry and detainer
       proceeding against a unit owner based on unpaid assessments, and thus may be raised
       by the unit owner in defense of the forcible action. 1 Spanish Court argues that a unit
       owner’s obligation to pay assessments is independent of the association’s obligation to
       maintain and repair the common elements and, thus, a unit owner’s claim that the
       association failed to fulfill its obligation is not germane to a forcible action based on
       unpaid assessments. In line with the appellate court judgment, Carlson counters that a
       unit owner’s obligation to pay assessments and the association’s obligation to repair
       and maintain the common elements are personal contractual obligations, and that if the
       association does not perform, it cannot demand performance from her.

¶ 13       Our review of the parties’ arguments and resolution of the legal issue before us
       require consideration of various provisions of the forcible statute, codified in article IX
       of our Code of Civil Procedure (735 ILCS 5/9-101 et seq. (West 2008)), as well as
       various provisions of the Condominium Property Act (Condominium Act) (765 ILCS
       605/1 et seq. (West 2008)). Accordingly, our review proceeds de novo. Knolls
       Condominium Ass’n v. Harms, 202 Ill. 2d 450, 454 (2002).

¶ 14       Section 9-102 of the forcible statute expressly provides that a forcible entry and
       detainer action may be maintained against a unit owner who “fails or refuses to pay
       when due his or her proportionate share of the common expenses ***, or of any other

           1
             Spanish Court has not pursued its challenge, raised below, to the trial court’s order disallowing a
       special assessment, nor has Spanish Court requested a remand to the appellate court to resolve that issue.
       Carlson has not challenged, by way of cross-appeal, that part of the appellate court judgment affirming
       the trial court’s order severing her counterclaim and, like Spanish Court, has not requested a remand to
       the appellate court to consider trial court errors raised in the appellate court but not considered.
                                                       -4-
       expenses lawfully agreed upon,” subject to proper notice by the association’s board of
       managers. 735 ILCS 5/9-102(a)(7) (West 2008). The Condominium Act contains a
       comparable provision authorizing an association’s board of managers to maintain a
       forcible entry and detainer action against a unit owner who defaults in the performance
       of his or her obligations under the Condominium Act, or under the condominium
       declaration or bylaws, or under the association’s rules and regulations. 765 ILCS
       605/9.2(a) (West 2008).

¶ 15       Notably, the forcible statute limits the matters which may be raised in a forcible
       action to “germane” matters. Section 9-106 states: “no matters not germane to the
       distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or
       otherwise.” 735 ILCS 5/9-106 (West 2008). Historically, the “distinctive purpose” of a
       forcible proceeding was to gain possession of property unlawfully withheld. Jack
       Spring, Inc. v. Little, 50 Ill. 2d 351, 357-58 (1972). With respect to leaseholds, the
       legislature expanded the purpose of the proceeding by providing that “a claim for rent
       may be joined in the complaint, and judgment may be entered for the amount of rent
       found due.” 735 ILCS 5/9-106 (West 2008); Jack Spring, 50 Ill. 2d at 358. When the
       legislature added condominium property to the reach of the forcible statute, the
       legislature likewise provided that when the action is based upon the failure of a unit
       owner to pay his or her share of the common expenses, or of any other expenses
       lawfully agreed upon, the association may obtain a judgment for both possession and
       the unpaid expenses found due by the court. 735 ILCS 5/9-111(a) (West 2008).

¶ 16       Although the distinctive purpose of a forcible proceeding has changed to the extent
       that, in some circumstances, an order of possession may be coupled with a money
       judgment, whether a matter is “germane” is yet closely tied to the plaintiff’s claim for
       possession. For example, in Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 257 (1970),
       where the plaintiffs’ forcible action was based upon the defendants’ failure to make
       payments pursuant to a residential installment contract, we held that “it must
       necessarily follow that matters which go to the validity and enforcibility of that
       contract are germane, or relevant, to a determination of the right to possession.”
       Similarly, in Jack Spring, we held that where a forcible action is based on unpaid rent,
       whether the tenant, in fact, owes rent is germane to that proceeding. Jack Spring, 50 Ill.
       2d at 358-59. Indeed, we observed that:

              “[E]ven though the plaintiffs do not seek to recover rent in these actions, the
              question of whether rent is due and owing is not only germane, but in these


                                               -5-
              cases where the right to possession is asserted solely by reason of nonpayment,
              is the crucial and decisive issue for determination.” Id. at 358.

       Accord Peoria Housing Authority v. Sanders, 54 Ill. 2d 478, 483 (1973).

¶ 17       In Clore v. Fredman, 59 Ill. 2d 20, 26-27 (1974), we examined our holdings in
       Rosewood Corp., Jack Spring, and Peoria Housing Authority, and held that the
       landlord’s motive for the attempted eviction was germane to the forcible proceeding
       where a state statute and local ordinance prohibited retaliatory evictions. We explained
       that, “[i]f in fact, the landlord’s action is retaliatory, the landlord is not entitled to
       possession of the property and the action cannot be maintained.” Clore, 59 Ill. 2d at 27.

¶ 18       In the present case, Spanish Court’s claim to possession of Carlson’s unit was
       based on nonpayment of assessments. It necessarily follows that whether Carlson, in
       fact, owes any assessments is germane to the proceeding. The issue in this case,
       however, is not simply whether a unit owner, like Carlson, may challenge whether
       assessments are due. Rather, the issue is whether the basis Carlson asserts for claiming
       that assessments are not due is legally sound. The appellate court, agreeing with
       Carlson, held that a unit owner’s obligation to pay assessments may be nullified by the
       association’s failure to repair or maintain the common elements. 2012 IL App (2d)
       110473, ¶¶ 28, 46. If correct as a matter of law, then Spanish Court’s alleged failure in
       this case would be germane to the forcible action because Spanish Court’s conduct, if
       proven, could defeat its claim for unpaid assessments, and, in turn, its claim for
       possession. But if Carlson’s nullification defense is not a legally viable defense, then
       Spanish Court’s alleged conduct is not germane to the forcible proceeding, and
       Carlson’s affirmative defenses were properly stricken by the trial court.

¶ 19       Spanish Court maintains that the appellate court’s recognition of a nullification
       defense rests on an ill-fitting analogy, namely, that the association-unit owner
       relationship is, for purposes of the forcible statute, analogous to the landlord-tenant
       relationship. See 2012 IL App (2d) 110473, ¶¶ 16, 26, 46. We agree with Spanish
       Court.

¶ 20       The relationship between a landlord and tenant is contractual. See generally 24 Ill.
       L. and Prac. Landlord and Tenant § 1, at 157 (2009). Although aspects of that
       relationship may be governed by state and local landlord-tenant laws, the relationship
       is created through the agreement of the parties. When a landlord breaches the terms of
       the agreement (the lease) by failing, for example, to comply with the implied warranty
       of habitability, cases have traditionally applied contract remedies, including damages,
                                               -6-
       rescission, reformation, or abatement of rent. Glasoe v. Trinkle, 107 Ill. 2d 1, 15-17
       (1985). Cf. Mohanty v. St. John Heart Clinic, S.C., 225 Ill. 2d 52, 70 (2006) (“Under
       general contract principles, a material breach of a contract provision by one party may
       be grounds for releasing the other party from his contractual obligations.”).

¶ 21       Although contract principles have sometimes been applied to the relationship
       between a condominium association and its unit owners based on the condominium’s
       declaration, bylaws, and rules and regulations (1 Gary A. Poliakoff, The Law of
       Condominium Operations § 1:23 (1988 and Supp. 2012-13)), the relationship is largely
       a creature of statute, defined by the provisions of the Condominium Act (765 ILCS
       605/1 et seq. (West 2008)). Under that act, the board of managers, through whom the
       association of unit owners acts (765 ILCS 605/2(o) (West 2008)), has the duty “[t]o
       provide for the operation, care, upkeep, maintenance, replacement and improvement of
       the common elements.” 765 ILCS 605/18.4(a) (West 2008). The Condominium Act
       also addresses the “[s]haring of expenses” among unit owners, and establishes that: “It
       shall be the duty of each unit owner *** to pay his proportionate share of the common
       expenses.” 765 ILCS 605/9(a) (West 2008). 2 Although these duties may also be
       reflected in the condominium declaration and bylaws, as they are in this case, they are
       imposed by statute and exist independent of the association’s governing documents.
       Accordingly, a unit owner’s obligation to pay assessments is not akin to a tenant’s
       purely contractual obligation to pay rent, which may be excused or nullified because
       the other party failed to perform.

¶ 22       The forcible statute itself distinguishes between the landlord-tenant relationship
       and the association-unit owner relationship. Section 9-209, applicable to leaseholds,
       states that a landlord may, after rent is due, “notify the tenant, in writing, that unless
       payment is made within a time mentioned in such notice, *** the lease will be
       terminated,” and the landlord may sue for possession and unpaid rent. (Emphasis
       added.) 735 ILCS 5/9-209 (West 2008). Thus, when a landlord successfully litigates its
       forcible action, the landlord-tenant relationship ceases and, except for any money
       judgment for past due rent, the tenant’s rental obligation terminates.

¶ 23       With respect to condominium property, however, the forcible statute nowhere
       indicates that the association-unit owner relationship, or the condominium declaration,
       “will be terminated.” A unit owner does not cease to be a unit owner even if

           2
            “Common expenses” is defined as “the proposed or actual expenses affecting the property,
       including reserves, if any, lawfully assessed by the Board of Managers of the Unit Owner’s
       Association.” 765 ILCS 605/2(m) (West 2008).
                                                 -7-
       dispossessed of his or her unit, and the obligations of condominium ownership,
       including the obligation to pay assessments, continue unabated. As set forth in section
       9-111 of the forcible statute, a unit owner may only file a motion to vacate a judgment
       in favor of the association if, inter alia, the unit owner “is not in arrears on his or her
       share of the common expenses for the period subsequent to that covered by the
       judgment.” (Emphasis added.) 735 ILCS 5/9-111(a) (West 2008). Section 9-111.1 also
       provides that the obligation to pay assessments continues, stating that where the board
       of managers rents the unit to satisfy the judgment, rental income may be applied,
       following satisfaction of the judgment, to “assessments accrued thereafter until
       assessments are current.” 735 ILCS 5/9-111.1 (West 2008). These statutory sections
       also reveal that, unlike an order of possession in favor of a landlord, an order of
       possession in favor of an association is intended to be temporary, not permanent, “with
       possession eventually returning to the unit owner.” Knolls Condominium Ass’n, 202 Ill.
       2d at 457. See also Ill. Ann. Stat., ch. 30, ¶ 309.2, Historical and Practice Notes, at 198
       (Smith-Hurd Supp. 1992) (“The relationship between a landlord and tenant is purely
       contractual and terminates upon a breach of that contract. By contrast the relationship
       between the condominium unit owner and the board of managers is statutory and
       ongoing.”).

¶ 24       The different treatment that the forcible statute accords to leased property, on the
       one hand, and condominium property, on the other hand, underscores that the
       landlord-tenant relationship and the association-unit owner relationship are not
       analogous, and that the defenses available to a tenant are not necessarily available to a
       unit owner. Whether a unit owner may, nonetheless, assert a nullification defense
       requires a closer examination of the Condominium Act and the nature of a unit owner’s
       obligation to pay assessments.

¶ 25       Section 9 of the Condominium Act, which establishes a unit owner’s duty to pay
       assessments, does not provide, expressly or impliedly, that such duty is contingent
       upon the repair and maintenance of the common elements. Section 9 does state,
       however, that “[i]f any unit owner shall fail or refuse to make any payment of the
       common expenses *** when due[ ] the amount thereof *** shall constitute a lien on the
       interest of the unit owner in the property” which may be recorded and foreclosed by the
       board of managers. 765 ILCS 605/9(g)(1), (h) (West 2008). Moreover, section 18
       provides:

              “[A] unit owner may not assign, delegate, transfer, surrender, or avoid the
              duties, responsibilities, and liabilities of a unit owner under this Act, the
                                                -8-
               condominium instruments, or the rules and regulations of the Association; and
               *** such an attempted assignment, delegation, transfer, surrender, or avoidance
               shall be deemed void.” 765 ILCS 605/18(q) (West 2008).

       This section further states that “[t]he association shall have no authority to forbear the
       payment of assessments by any unit owner.” 765 ILCS 605/18(o) (West 2008).

¶ 26       These provisions, when read together, demonstrate that a unit owner’s liability for
       unpaid assessments is not contingent on the association’s performance. The unit owner
       cannot “avoid” the duty to pay assessments, i.e., the duty cannot be annulled, vacated,
       defeated, or invalidated (see Webster’s Third New International Dictionary 151
       (1986)), and the association cannot refrain from enforcing that obligation.
       Accordingly, a unit owner’s claim that its obligation to pay assessments was nullified
       by the association’s failure to repair and maintain the common elements is contrary to
       the Condominium Act and is not a viable defense. 3

¶ 27      We recognize that Spanish Court based its right to possession on Carlson’s
       unfulfilled obligation to pay assessments under the condominium declaration, and not
       under the Condominium Act. Nothing in the declaration or bylaws, however, may
       conflict with the provisions of the act. 765 ILCS 605/18, 4(i) (West 2008).

¶ 28       A nullification defense is not only inconsistent with the express provisions of the
       Condominium Act governing the payment of assessments, such a defense is
       inconsistent with the legislature’s purpose in adopting section 9.2, authorizing the
       maintenance of a forcible action against a defaulting unit owner. 765 ILCS 605/9.2
       (West 2008). “ ‘This section was adopted to provide a constitutionally permissible,
       quick method for collection of assessment arrearages ***.’ ” Knolls Condominium
       Ass’n, 202 Ill. 2d at 457-58 (quoting Ill. Ann. Stat., ch. 30, ¶ 309.2, Historical and
       Practice Notes, at 179-80 (Smith-Hurd Supp. 1991)). A nullification defense would
       inject a myriad of fact-based inquiries into the forcible action, unduly prolonging what
       was intended to be an expeditious proceeding. Not only would the forcible court need
       to determine whether the association breached its duty to repair or maintain a common
       element, the forcible court would need to determine whether that breach was
       “material,” and whether that material breach constituted a partial or complete defense
       to the forcible action.

           3
            Although condominium property statutes vary, the argument that the right to collect assessments is
       dependent upon the association’s duty to maintain the common elements has “not been generally
       accepted by the courts.” 1 Gary A. Poliakoff, The Law of Condominium Operations § 5:19 (1988 and
       Supp. 2012-13).
                                                     -9-
¶ 29      The necessity of a “quick method” for collection of past due assessments,
       unencumbered by extraneous matters, is manifest when we consider the manner in
       which condominium associations operate and the impact a nullification defense would
       have on their very existence. Condominium ownership is unique in that a unit owner
       holds fee simple title to a unit (765 ILCS 605/2(g) (West 2008)), as well as an interest
       with his or her fellow unit owners in the common elements (765 ILCS 605/4(e) (West
       2008)). See also 1 Gary A. Poliakoff, The Law of Condominium Operations § 1:01
       (1988 and Supp. 2012-13) (“The key characteristic that distinguishes the condominium
       concept from other forms of property ownership is the commonly owned property
       appurtenant to, and inalienable from each unit.”).

¶ 30        The association, which is comprised of all the unit owners (765 ILCS 605/2(o)
       (West 2008)), “is responsible for the overall administration of the property through its
       duly elected board of managers.” 765 ILCS 605/18.3 (West 2008). The officers and
       members of the board must “exercise the care required of a fiduciary of the unit
       owners.” 765 ILCS 605/18.4 (West 2008). The business of the board, which includes,
       inter alia, the care and upkeep of the common elements, the employment of necessary
       personnel, the acquisition of appropriate insurance, and the payment of real property
       taxes (765 ILCS 605/18.4(a), (e), (f), (k) (West 2008)), is funded through the unit
       owners’ assessments. The assessments are derived from the annual budget prepared by
       the board. See 765 ILCS 605/18(a)(6) to (8) (West 2008) (discussing procedure for
       adoption of the “proposed annual budget and regular assessments pursuant thereto”).
       The association’s ability to administer the property is dependent upon the timely
       payment of assessments, and “any delinquency in unit owners’ payments of their
       proportionate share of common expenses may result in the default of the association on
       its obligations or the curtailment of association directed services,” impacting not only
       the delinquent unit owner, but all association members. 1 Gary A. Poliakoff, The Law
       of Condominium Operations § 5:03 (1988 and Supp. 2012-13). Because of the
       interdependence that exists among unit owners, the condominium form of property
       ownership only works if each unit owner faithfully pays his or her share of the common
       expenses. When a unit owner defaults in the payment of his or her assessments, the
       resulting forcible entry and detainer action is thus brought “for the benefit of all the
       other unit owners.” 765 ILCS 605/9.2(a) (West 2008). See also 765 ILCS 605/9(h)
       (West 2008) (statutory lien for common expenses “shall be for the benefit of all other
       unit owners”).



                                              - 10 -
¶ 31       Permitting a unit owner’s duty to pay assessments to be nullified would thus
       threaten the financial stability of condominium associations throughout this state. As
       explained by the Massachusetts high court:

              “Whatever grievance a unit owner may have against the condominium trustees
              must not be permitted to affect the collection of lawfully assessed common area
              expense charges. A system that would tolerate a unit owner’s refusal to pay an
              assessment because the unit owner asserts a grievance, even a seemingly
              meritorious one, would threaten the financial integrity of the entire
              condominium operation. For the same reason that taxpayers may not lawfully
              decline to pay lawfully assessed taxes because of some grievance or claim
              against the taxing governmental unit, a condominium unit owner may not
              decline to pay lawful assessments.” Trustees of the Prince Condominium Trust
              v. Prosser, 592 N.E.2d 1301, 1302 (Mass. 1992).

       The Massachusetts high court thus held that “there is no right to set-off against a
       lawfully imposed condominium charge.” Id. Although the Massachusetts court’s
       holding was entered in the context of a statutory lien foreclosure action against a
       defaulting unit owner, its reasoning applies equally in the context of a forcible action
       against a defaulting unit owner. See also Andrea J. Boyack, Community Collateral
       Damage: A Question of Priorities, 43 Loy. U. Chi. L.J. 53, 56-80 (2011) (discussing,
       inter alia, the devastating impact of assessment delinquencies in today’s housing
       market, and the unfair financial burden placed on nondelinquent owners).

¶ 32       Recognition that a unit owner’s duty to pay assessments cannot be nullified does
       not mean that a unit owner cannot challenge whether assessments are due, nor does it
       mean that an aggrieved unit owner has no recourse. A unit owner could, for example,
       challenge whether assessments are due by challenging the association’s recordkeeping,
       or the manner in which the assessment was adopted. See 765 ILCS 605/2(m) (West
       2008) (defining “ ‘[c]ommon [e]xpenses’ ” as those “lawfully assessed” by the board).
       In addition, a unit owner who believes he or she has been aggrieved by some act or
       omission of the board of managers may take steps to remove the offending board
       members; become involved in the management of the association by seeking election
       to the board; or seek recourse through the courts.

¶ 33      In this case, when the forcible action proceeded to trial, Carlson challenged the
       manner in which Spanish Court adopted one of its special assessments, for which
       Spanish Court sought payment. After hearing the evidence, the trial court disallowed

                                              - 11 -
       that special assessment. Additionally, as noted earlier, Carlson elected to file a
       counterclaim for damages to her unit, which was severed by the trial court and
       transferred to another courtroom for disposition. Thus, Carlson will have an
       opportunity for a full and fair hearing on her claim that Spanish Court failed to repair
       and maintain the roof and brickwork, causing damage to her unit.



¶ 34                                     CONCLUSION

¶ 35       Carlson’s claim that her duty to pay assessments was nullified by Spanish Court’s
       failure to repair and maintain the common elements is not a viable defense to Spanish
       Court’s forcible action as a matter of law, and is thus not germane to that proceeding.
       We, therefore, reverse that portion of the appellate court judgment vacating the trial
       court’s judgment and remanding for partial reinstatement of Carlson’s affirmative
       defenses, and affirm the judgment of the trial court.



¶ 36      Appellate court judgment reversed in part.

¶ 37      Circuit court judgment affirmed.



¶ 38      JUSTICE FREEMAN, dissenting:

¶ 39       The majority holds that in a forcible entry and detainer proceeding for unpaid
       assessments, a unit owner cannot raise as a defense an association’s failure to repair or
       maintain the common elements. I disagree and respectfully dissent. I would hold that
       such a defense can be raised and is germane to the forcible proceeding.

¶ 40       I begin with the premise that Illinois is unique in allowing a condominium
       association to utilize the forcible statute to evict a unit owner for failure to pay
       assessments. Knolls Condominium Ass’n, 202 Ill. 2d at 458 (quoting Ill. Ann. Stat., ch.
       30, ¶ 309.2, Historical and Practice Notes, at 180 (Smith-Hurd Supp. 1991)). 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. Id. (quoting Ill. Ann. Stat., ch. 30, ¶ 309.2, Historical and
       Practice Notes, at 180 (Smith-Hurd Supp. 1991)). The association may rent the unit and
       apply the rental funds to the delinquent common expenses. Id. at 457; see 735 ILCS
                                               - 12 -
       5/9-111.1 (West 2008). We are unaware of any other state that permits an association
       such a remedy in forcible entry and detainer. See 1 Gary A. Poliakoff, The Law of
       Condominium Operations § 5:48 (1988 and Supp. 2012-13).

¶ 41       The forcible statute permits a defendant to offer into evidence any matter in defense
       of the action that is germane to the distinctive purpose of the proceeding. 735 ILCS
       5/9-106 (West 2008). Neither the forcible statute nor the Condominium Act defines
       germane. Yet, sections 9-106 and 9-111 of the statute permit a claim for rent (735 ILCS
       5/9-106 (West 2008)) as well as a claim for unpaid assessments (735 ILCS 5/9-111
       (West 2008)) to be included in the action. This court has already determined that since
       a landlord can include a claim for unpaid rent in a forcible proceeding, a tenant may
       raise as a defense that no rent was due. Jack Spring, 50 Ill. 2d at 359. Specifically in
       Jack Spring, we held that the tenant could assert as a defense that the landlord breached
       the implied warranty of habitability and as a result, the tenant’s duty to pay rent was
       excused or nullified by the landlord’s breach. Jack Spring, 50 Ill. 2d at 359. We
       reasoned that to hold that a landlord could, at his discretion, expand the issues (i.e.,
       assert a claim for rent) in a forcible proceeding, but the tenant could not (i.e., assert a
       defense for breach of the lease terms, express or implied), violated “common sense and
       accepted rules of statutory interpretation.” Id. at 358.

¶ 42       We should employ a similar analysis here. Spanish Court brought its complaint
       pursuant to the forcible statute and asserted counts for possession and breach of
       contract (the condominium declaration) as well as a claim for unpaid assessments.
       Similar to the tenant in Jack Spring, Carlson should be permitted to raise as a defense
       that the association’s breach of its duty to repair or maintain the common elements
       excused or nullified her duty to pay assessments. Though the majority acknowledges
       Spanish Court based its right to possession on Carlson’s failure to pay assessments
       under the condominium declaration and not the Condominium Act, it nevertheless
       maintains that the relationship between an association and unit owner is controlled by
       statute rather than contract. Thus, the majority concludes, for purposes of the forcible
       statute, analogies between the landlord-tenant relationship and unit owner-association
       relationship are “ill-fitting” and the defenses available to a tenant are not necessarily
       available to a unit owner. My view is more moderate. The unit owner-association
       relationship is governed both by statute (the Condominium Act) and contract (the
       condominium’s declaration, bylaws and rules and regulations). Therefore, I believe
       that such a comparison is not “ill-fitting” and that a nullification defense should
       likewise be available to a unit owner.

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¶ 43       Although the majority cites to Rosewood Corp. for support, I believe it supports my
       position. In Rosewood Corp., we considered whether the defendants, who had entered
       into installment contracts for the purchase of residential properties, could assert as
       affirmative defenses in a forcible proceeding that the installment contracts were
       unconscionable and unenforceable based on the defendants’ allegations of fraud and
       violations of their civil and constitutional rights. The defendants had stopped making
       their installment payments and “appear[ed] to have embarked upon a concerted course
       of self-determination and self-help, for an apparent purpose of securing a modification
       and renegotiation of their contracts.” Rosewood Corp., 46 Ill. 2d at 252. Noting that
       “germane” had been defined as “closely allied,” “closely related,” “closely connected,”
       “relevant,” and “pertinent,” we held that the defendants’ affirmative defenses
       challenging the validity and enforceability of their contracts were germane to a
       determination of the right to possession. Id. at 256-57. Specifically, we found that:
       “[w]here as here, the right to possession a plaintiff seeks to assert has its source in an
       installment contract for the purchase of real estate by the defendant, we believe it must
       necessarily follow that matters which go to the validity and enforcibility of that
       contract are germane, or relevant, to a determination of the right to possession.” Id. We
       further noted that construing the statute in this manner “may interfere with the
       summary aspects of the remedy.” Id. at 258. However, we concluded that the rights of
       the purchasers to be heard on relevant matters and to be secure in their constitutional
       rights was superior to that of the summary aspects of the remedy for possession. Id.

¶ 44        Similarly here, whether a unit owner owes condominium assessments is “closely
       allied,” “related,” “connected,” “relevant” and “pertinent” to the condominium
       association’s forcible action for possession and unpaid assessments. When Spanish
       Court’s right to possession is based on Carlson’s failure to pay assessments pursuant to
       the condominium declaration, it must necessarily follow that the question of whether
       Carlson owes those assessments is germane or relevant to a determination of the right
       to possession.

¶ 45       Additionally, a nullification defense is not contrary to the provisions in the
       Condominium Act that govern the payment of assessments, as the majority asserts. The
       Condominium Act imposes a duty on unit owners to pay their proportionate share of
       the common expenses as well as a duty on associations to repair and maintain the
       common elements. Yet, it does not address a situation such as here where a unit owner
       stops paying assessments because the association failed to repair and maintain the roof,
       a common element. Since the Condominium Act is silent in this regard, permitting a

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       unit owner to raise a nullification defense is not contrary to the Condominium Act’s
       provisions.

¶ 46       The majority also references in a footnote that “the argument that the right to
       collect assessments is dependent upon the association’s duty to maintain the common
       elements has ‘not been generally accepted by the courts,’ ” Supra ¶ 26 n.3 (citing 1
       Gary A. Poliakoff, The Law of Condominium Operations § 5:19 (1988 and Supp.
       2012-13)). However, this assertion ignores the fact that Illinois is unique in that it
       permits condominium associations to utilize the forcible statute to evict a unit owner
       for failure to pay assessments. Therefore, a comparison to other courts’ decisions is not
       persuasive.

¶ 47       Moreover, a nullification defense is not contrary to the express purpose of forcible
       proceedings to provide a “quick method” to collect assessment arrearages
       unencumbered by “extraneous matters.” If a tenant can raise the defense in a forcible
       proceeding, I fail to see much difference in the nature and extent of the proceeding if
       raised by a unit owner. The majority acknowledges that a unit owner could challenge
       whether assessments were due, though on a basis other than a nullification theory; yet,
       it does not explain why a nullification defense would make the proceeding any longer
       or more cumbersome than any other defense. Likewise, the majority does not explain
       how such a defense is an “extraneous matter” when the sole basis for Spanish Court’s
       complaint was Carlson’s failure to pay assessments. We pointed out in Jack Spring that
       the forcible statute had to some extent lost its distinctive purpose of only restoring
       possession, and, in Rosewood Corp., we recognized a departure from the summary
       aspects of the remedy. Jack Spring, 50 Ill. 2d at 358; Rosewood Corp., 46 Ill. 2d at 258.
       Here, the forcible action proceeded to a bench trial on Spanish Court’s claim for unpaid
       special assessments, accrued assessments, late charges, attorney fees and costs.
       Clearly, the proceeding is not quite as “quick” as the majority asserts. I disagree that
       permitting a unit owner to raise a nullification defense would interfere with the
       summary aspects of the forcible proceeding.

¶ 48       Further, we noted back in 1972, in Jack Spring, the “salutary trend” toward
       determining the rights and liabilities of litigants in one, rather than multiple,
       proceedings. Jack Spring, 50 Ill. 2d at 359. Interpreting the forcible statute as
       permitting a unit owner to raise such a defense is consistent with this pronouncement.

¶ 49      Lastly, the majority’s decision rests upon an unfounded fear that permitting a unit
       owner to raise a nullification defense would threaten the financial stability of

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       condominium associations throughout the state. As the appellate court noted, the
       association’s breach must be material and cannot be based on a general disagreement
       with the association. The threat of eviction also serves as a very powerful tool to
       encourage compliance by unit owners and a unit owner who ceases paying assessments
       does so with the utmost peril. It is true that the form of condominium ownership only
       works if each unit owner faithfully pays his or her share of the common expenses. It is
       equally true that condominium ownership only works if the association likewise fulfills
       its obligations. Not permitting a unit owner to raise a nullification defense in a forcible
       action denies a voice to an ever growing segment of the population who purchase
       condominium property. True, unit owners can continue to pay assessments and bring a
       lawsuit against the association for its failure to repair or maintain; however, that puts an
       expensive and time-consuming burden on the unit owner rather than litigating the
       matter in the forcible proceeding that is already before the court, as is done in a
       landlord-tenant situation.

¶ 50       In the end, I believe this is a matter best left to the legislature. The legislature
       included condominium property within the province of the forcible statute and further
       provided that a claim for unpaid assessments may be included in the forcible action for
       possession. Yet, it provided no further guidance as to what defenses may be germane to
       the proceeding. If the legislature had wanted to foreclose a unit owner from raising a
       nullification defense in a forcible action, it could have so provided. It did not.



¶ 51      JUSTICES KILBRIDE and BURKE join in this dissent.




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