Decided by the First District of the Illinois Appellate Court on April 20, 2016, State Place Condominium Association v. Magpayo confirms that in order for an owner to regain possession of their Unit which has been lost to the Association pursuant to a judgment for possession, the full default must be cured, and such default includes post-judgment attorney’s fees.

In Magpayo, the trial court determined that the Association was entitled to possession of the property owned by the unit owner. Additionally, the court awarded the Association $1,863.23 in past due assessments, $357.00 is court costs, and $1,667.50 in legal fees. Subsequently, the owner filed various motions requiring five additional court appearances, and the court thereafter awarded the Association an additional $1,015.00 in attorney’s fees.

The unit owner filed a notice of appeal, which in part argued that in order to cure the default, it was not necessary to pay post-judgment attorney fees as a condition precedent to returning her to possession of her property. The owner’s argument relied on a Third District Appellate Court case, Glens of Hanover Condominium Association v. Chiaramonte, which stands for the proposition that the payment of attorney’s fees is not necessary to cure a default for possession.

On appeal, the appellate court rejected the holding in Chiaramonte, noting that the case was no longer good law because of an amendment to Section 9.2 of the Illinois Condominium Property Act. The court points out that subsequent to the holding in Chiaramonte, the legislature amended Section 9.2 of the Illinois Condominium Property Act to include attorney’s fees as respective shares of the common expenses.

Thus, the court concluded that Illinois not only permits, but requires that attorney’s fees incurred by the Association that arise out of a default be added to a unit owner’s share of common expenses, and further, that attorney’s fees must be paid to cure the judgment before the owner can regain possession of their unit. This will avoid having to file a second suit to collect the post-judgment attorney’s fees.

We are available to assist you in determining the impact of this case on your association. Contact KSN at 855-537-0550 or visit our contact page.