March 2013
Volume 101 No. 103    |
Court Reverses Appellate Court in
Poris v. Lake Holiday
(Controlling Speedsters, Safety and Security)
The Illinois Supreme Court has handed down a new decision granting HOAs and Condo Associations broader control of their land and buildings. In Poris v. Lake Holiday Property Owners Association, the Court ruled that associations have the authority to enact and enforce rules and regulations, and as part of that authority, they can stop people from driving faster than the HOA's posted speed limits. The case has important implications for any HOA or condo association attempting to enforce any sort of rule, and in particular, any rule impacting security.
In that case, a member of the association filed suit against the association after he was pulled over for speeding on an association road. The security officers working for the association stop motorists only for violating HOA rules and not for other infractions. The stops are recorded, although the owners are advised that if the owner objects, the officer will shut off the recording equipment.
Poris claimed that while driving on an HOA road, a private security officer pulled him over for speeding. Poris later filed a complaint against the association seeking to prevent the association from enforcing the rules and also seeking damages for false imprisonment.
The Supreme Court rejected the arguments of Poris. Courts generally will not interfere with the internal affairs of a voluntary association. In this case, the Court found, the association and its security acted consistently with the association's bylaws. As such, the Court should "decline to interfere" with the internal affairs of the association. The association "acted within its authority as a voluntary association to adopt and enforce its own rules and regulations."
This case is extremely important due to the fact the appellate court's ruling had the potential to prevent associations from enforcing their rules or from providing security generally.
Now that the Illinois Supreme Court has ruled, associations should make sure that any security rules have been properly passed. If they have been properly passed and are enforced consistently, it is likely that courts will give associations the freedom to provide the security they see fit.
Courtesy of David M. Lewin, Attorney
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Collecting Delinquent Assessments
Courtesy of the IL Legal Aid
Under the Illinois Condominium Property Act (765 ILCS 605), members of a condominium association are legally obligated to collect assessments from the condominium owners. Failure to collect assessments from a condominium owner, regardless of the reason, could result in a lawsuit against the association. This means that when an owner is delinquent in their assessments the association must collect assessments from the owner, regardless of the board's personal feelings with respect to the owner's individual situation. This does not eliminate the possibility of offering a consistent payment plan to someone who has a financial hardship. What Steps Can a Condominium Association Take to Collect Assessments When an Owner Fails to Pay on Time?Once a condominium owner has failed to pay assessments to the condominium association, the association has several options for collecting the assessments. It can: - Send a collection letter
- File a lien on the property
- File a forcible entry and detainer (Forcible Act)
The association must exercise the options in this order, only placing a lien on the property, for example, after first sending a collection letter. Collection LetterThe first step forward toward collecting assessments is to prepare and send a 31 day collection letter. The letter should state: - The Total amount that is owed
- A date for the full payment
Either a condominium attorney or the association may write the letter. The letter should be addressed to the unit owner. The association can confirm the unit owner by performing a title search with the county's recorder of deeds. Additionally, when writing the collection letter, the association should be careful not to violate the Fair Debt Collection Practices Act. Lien The IL condo act and many condominium declarations often make filing a lien unnecessary since provisions already create one when assessments are delinquent. If a unit owner does not respond to the collection letter, the next step is to rely on the lien. A lien allows you to force the sale of the unit to pay off what the unit owner owes. A lien also makes it very difficult for the unit owner to sell their condominium because until the delinquent unit owner pays off the money they owe, you will be able to force the sale of the condo, even if there is a new owner, to collect the money owed by the previous owner. Typically, a buyer will insist that the condo seller satisfy the lien as a condition of the sale. You should speak with an attorney to assist you in filing the lien.
The Condominium Property Act allows a condominium association to file a lien against a unit owner if the owner fails to pay: - Common expenses (assessments)
- Fines
- Interest
- Late Charges
- Reasonable attorneys fees incurred enforcing:
- Covenants of the declaration
- Rules and regulation of the association
- Application statute or ordinance
- Costs of collection
Forcible Entry and Detainer Act (the Forcible Act)
If after filing a lien the unit owner still does not pay their assessment to the condominium association, the association should file for the Forcible Act. The Forcible Act allows the condominium association to ask a court for a money judgment and possession of the unit for which assessments have not been paid. The Act only allows the condominium association to take possession of the unit; the owner will still own the unit. This is similar to an eviction of a tenant who has not paid rent. Once the condominium association has possession of the unit, they may rent out the unit and use the rent money to pay the past due assessments. The Forcible Act permits the association to rent out the unit for 13 months, though the association may petition for more time if necessary.
What Happens When the Unit Owner Who Owes Assessments Enters Foreclosure?
In this situation it is very important for the association to contact their attorney. Numerous issues can arise when a delinquent unit owner enters foreclosure. Even in a foreclosure, a condominium association can collect up to 6 months of assessments. The association can only collect assessments owed before the date of the filling of a collection action such as a forcible act. In addition to the delinquent assessments, the association can also collect the legal fees incurred to collect the delinquent assessments.
The purchaser of the unit pays the potential 6 months of delinquent assessments and legal fees that the association can collect unless the purchaser is a mortgage holder (i.e. the bank). If the mortgage holder purchases the unit, which has recently become more common, the association will have to wait until the mortgage holder sells the unit. At that time, it will be able to collect the delinquent assessments and legal fees from the person that purchases the unit from the mortgage holder. However, the mortgage holder will be responsible for paying the assessments beginning the month following the date that it purchases the unit.
You can file a collection after a foreclosure action has begun. If the association had not filed a legal action to collect delinquent assessments when it is served with a foreclosure complaint, it can still file a collection action.
By law any lien filed by the association will be extinguished at the sheriff's foreclosure sale.
What If the Unit Owner Petitions for Bankruptcy?
Unless the association has filed a lien against the unit for the amount of the delinquency, any pre-petition amounts due to the association will be discharged in bankruptcy. However, the association may file a Proof of Claim prior to the discharge, so its claim for pre-petition assessments is at least partially paid either: - From the debtor's liquidated assets in Chapter 7 bankruptcy action, or
- Pursuant to a Chapter 13 payment plan
However, the unit owner is still responsible for paying assessments that come due after the owner has petitioned for bankruptcy. If the owner fails to pay their post-petition assessments, the association may petition the court to lift the Automatic Bankruptcy Stay. An Automatic Bankruptcy Stay is an order of the bankruptcy court in place in every case, prohibiting creditors from taking any actions against the debtor or the debtor's property while the bankruptcy is pending. Once the court lifts the Stay, the association should follow its regular collection procedures with respect to these amounts. |
Pheromone Moth Traps - Why they Work 
The key to trapping moths with a Pheromone Moth Trap is that the pheromone is a lure that makes male moths think there is a female nearby. The male moth follows the scent of the moth pheromone lure and gets caught in the moth trap's sticky glue board. Now you have one less male moth available to mate with a female...and 100 fewer moth eggs to turn into moth larvae worms and eventually, fewer adult moths. Effective moth control that leverages the moth's own instincts to annihilate a moth infestation! The beautiful part of this technology is it requires no poisons or pesticides that can also be detrimental to people and the environment.
Some community associations who have experienced a moth infestation find it relatively inexpensive to pay for a community wide supply of Pheromone Moth Traps and require everyone to install the moth traps. They last about three months and then need to be replaced. If you number each moth trap with the unit number it was servicing, you can collect the used moth traps and examine them. This will help target where the worst problems exist and more intense treatments can be properly applied where needed. Don't forget to install them in common and unit owner storage areas. By implementing a community wide attack, the moth population won't be able to shift from one unit to the next to avoid the assault and their ability to breed and multiply will be annihilated. Your wool coats and sweaters will be saved and safe.
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Community Introduction to Pet Rules for HOA Harmony
...from a Happy Pet-Friendly Community
 Our association is proud to be pet-friendly, and we're happy your four-legged family members are part of our community. Of course, like any good neighbor, it's important that these pets don't create an unpleasant environment. To avoid unnecessary disputes and potential rule violations, here are some guidelines owners should follow to ensure their furry friends continue to be a welcome addition to the neighborhood.
Read the Rules: While we welcome pets in our association, we have a few rules and requirements. Please check our website or the association's governing documents for more information.
Service animals are exempt from the association's pet requirements. However, please contact the board or manager to ask for an accommodation to keep a service animal. Proof of the service animal's training or a doctor's certification may be required.
Keep it Clean: No one wants to see, smell or accidently step in the "gift" your dog left on the grassy common area. So when your dog needs to go, be sure to properly dispose of it, preferably in a pet waste disposal can. Not only will this keep our community looking better, but it will help keep ground water clean and help prevent the spread of fecal-borne diseases.
Quiet Down: Pets will be noisy from time to time. However, when loud barking or meowing becomes annoying to neighbors, it's time to help your pet become less talkative. First, try to find out what causes your pets to get vocal: Do they get noisy when they've been alone and bored all day and need some playtime? Have they gone through a stressful change in environment recently? Are they suffering from health issues? Do they simply like saying "hello" to every squirrel, person or car that passes by? When you've identified the cause, take remedial actions such as confining them to an area where they feel calm while you're away, removing or blocking as many stimuli as possible, exercising them more and spending more time with them. You can also take them to a professional or search online for tips on how to train your pets to be quiet.
No Wandering: This is for everyone's safety. Please do not allow your pets to roam unattended in common areas both inside and outside the building. Leashing your dog is the law.
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 Association of Condominium, Townhouse and Homeowners Association
Benefits of Association / Individual Membership
Think about your current role in your community association. Volunteer Board member? Appointed committee member? Owner? Property manager consulting and advising condo, townhome, HOA or co-op properties? Imagine how much more confident, influential and effective you could be with greater leadership skills, deeper knowledge about property administration, operations, systems and governance, and instant access to a wide array of reference materials and professional expertise. ACHTA serves Chicago, Cook, Lake, Will and the other collar counties and throughout Illinois. Recently, ACHTA provided an educational and service seminar at Drury Lane in Oak Brook. Cagan property managers were there. You might want to put Saturday, October 12th on your calendar and join the next one in Wheeling, IL at the Westin Hotel. |
Cagan Spring Leadership Seminar
Believe it or not, it is almost time for our next Cagan Leadership Seminar. As previously published, the date is May 9th, 6:30PM in the Cagan training room at our Skokie headquarters. Light supper included with this free opportunity. Reserve your place now by contacting Janet Nelson, jnelson@cagan.com or 847-324-8961. Here is the line-up:
- Global Steam Heat System Analysis
- Fireplace, Flue and Chimney Maintenance and Renovation
- Tree Care and Maintenance
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