Attorneys’ Fee Reward Denied for Mischaracterizing Claim

The Illinois Appellate Court recently made it clear that if you are trying to claim attorneys’ fees for winning in court on a Condominium Property Act case, you should be careful on how you approach the claim. The facts of Blackstone Condominium Association v. Speights-Carnegie, 2017 IL App (1st) 153516 (February 3, 2017) Cook Co., 6th Div. are as follows: The defendant had stopped paying her assessment.  The condominium association filed a forcible entry and detainer action against her.  Apparently the defendant had also stopped paying her mortgage, because she was foreclosed in 2012.  The condominium association then dropped the forcible suit.

However, in 2014, the condominium association sued the defendant again, this time for failure to pay assessments from January of 2010 through February of 2012. The association sued for $6,936, plus attorneys’ fees and costs.  On the cover sheet that was filed with the suit, the suit was described as a “breach of contract” matter.

The association won the suit in 2015, although in the end the judge only agreed to give them $2,913. The association then petitioned for its attorneys’ fees, but the court denied the petition since the suit was filed as a breach of contract claim.  The association did not have a written contract with the defendant which stated that the association could recover its attorneys’ fees.  Moreover, the condominium declaration did not cover the issue of attorneys’ fees either.

The association appealed and argued that they were entitled to recover attorneys’ fees under Section 9.2(b) of the Illinois Condominium Property Act, which states that if a unit owner defaults, any attorneys’ fees incurred as a result should be added to his account as a common expense. The appellate court did not agree with the association.  According to the appellate court, there is a case, Board of Directors of Warren Boulevard Condominium Ass’n v. Milton, 399 Ill. App. 3d 922 (2010), which explains how those additional common expenses may be recovered. According to the court in the Milton case, if you want to recover fees, you have to follow the two relevant acts: the Illinois Condominium Property Act and the Forcible Entry and Detainer Act.   In the instant case, however, the association filed a forcible and then actually dropped the suit.  In the end they filed a breach of contract claim, which was outside of both the Condominium Property Act and the Forcible Entry and Detainer Act.  Additionally, there was no contract between the parties that would justify an attorneys’ fee reward.

I wonder how much all this litigation ended up costing the association. They recovered $2,913, but I can’t imagine how much the attorneys’ fees must have been by the time they got through the appeal!