                                  Illinois Official Reports

                                          Supreme Court



               Spanish Court Two Condominium Ass’n v. Carlson, 2014 IL 115342




Caption in Supreme           SPANISH COURT TWO CONDOMINIUM ASSOCIATION,
Court:                       Appellant, v. LISA CARLSON, Appellee.



Docket No.                   115342



Filed                        March 20, 2014
Rehearing denied             June 19, 2014



Held                         Where a condominium association brought a forcible entry and
(Note: This syllabus         detainer action against a unit owner for failure to pay assessments, the
constitutes no part of the   affirmative defense of alleged failure to repair and maintain common
opinion of the court but     areas was properly stricken as not germane to that summary statutory
has been prepared by the     proceeding.
Reporter of Decisions
for the convenience of
the reader.)




Decision Under               Appeal from the Appellate Court for the Second District; heard in that
Review                       court on appeal from the Circuit Court of Lake County, the Hon.
                             Michael J. Fusz, Judge, presiding.




Judgment                     Appellate court judgment reversed in part.
                             Circuit court judgment affirmed.
     Counsel on               Diane J. Silverberg and Nicholas R. Mitchell, of Kovitz Shifrin
     Appeal                   Nesbit, of Buffalo Grove, for appellant.

                              Norman J. Lerum, of Chicago, for appellee.

                              Allan Goldberg, Hal R. Morris and Laura L. Marinelli, of Arnstein &
                              Lehr LLP, of Chicago, for amicus curiae Community Associations
                              Institute-Illinois Chapter.




     Justices                 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.”



                                                   -2-
¶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 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

                                                -3-
       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.
¶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 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

           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-
       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
       enforc[ea]bility 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 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

                                                    -5-
       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, 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,

          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).

                                                   -6-
       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 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 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”

                                                   -7-
       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.
¶ 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

           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).

                                                     -8-
       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”).
¶ 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.



                                                   -9-
¶ 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 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 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


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       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.
¶ 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 enforc[ea]bility 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 were 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


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       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 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 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

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       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 which purchases
       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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