—A Matter of Fairness
“Unfortunately, the answer to your question is a resounding 'NO,'” says Chicago-based attorney Barry Kreisler. “ Further, this would be a dangerous position to take, in that the association has the right under Illinois law to sue to evict you from possessions of your unit and to receive an award not only of the assessments due plus any applicable late fees, but also of the association's reasonable attorney fees and court costs.
“While the association does have the legal obligation under Illinois law to maintain the common elements and to repair any damage caused to a unit by the failure to do so, the unit owner's obligation to pay assessments is considered a separate and independent obligation. In an eviction action by the association for possession of the unit delinquent in payment of assessments, the delinquent owner would not be permitted to raise the association's breach of its obligation to maintain the common elements either by way of affirmative defense or by counterclaim, as the Illinois eviction statute (the Forcible Entry and Detainer Act) prohibits the raising of any issues not “germane” to the distinctive purpose of the eviction proceeding, which is solely in the case of a condominium unit to determine the issue of possession and the amount of assessments due. And the only issue germane to the issue of possession is whether the unit owner paid his or her assessments when due.
“Your direct recourse for the failure of the association to maintain the common elements is a suit against the association for injunctive relief and/or damages. As the association's duty to maintain is clear and absolute, such a suit while both inconvenient and frustrating should result in a court order requiring that the association meet its obligations. Another means of recourse would be the political one of supporting an election of a different Board of Managers, which would meet its legal obligations without the need for lawsuits by damaged unit owners.”