Earlier this month, legislation was proposed in the Illinois General Assembly that would expand condominium owners’ rights when challenging their homeowners associations. Rep. Scott Drury of the 58th District introduced HB4489, HB4490, HB4491 as proposed amendments to the Condominium Property Act. These bills aim to level the playing field for unit owners when faced with an unresponsive or downright neglectful association. Most notably, the proposed legislation would allow a unit owner to bring an action against a homeowners association to enforce either individual or common interest community rights without being required to sue other homeowners. In addition, the legislation would make any bylaw provision, rule or regulation that “attempts to limit a unit owner’s right to commence litigation against an association . . . or to limit the liability of an association . . . for a breach of duty [as] void as against public policy” and it would not be given any effect. Additionally, the proposed amendment provides that “a unit owner’s compliance with an association’s demand does not waive the unit owner’s right or ability to challenge the demand in a later commenced legal action.”
HB4489 would also have a direct effect on the attorneys involved in these actions. First, the proposed law would authorize the award of attorney’s fees to the prevailing party under certain circumstances. But even beyond the bill’s fee shifting capabilities, the association could “not be represented in litigation by counsel who also represents the association’s board of managers either individually or collectively.” Thus, associations may be faced with the task of finding independent counsel if the association retains an attorney or firm that also represents the board of managers in some capacity.
Under HB4491, if an association attempts to sue a unit owner to retake possession of the property for unpaid condominium expenses, then the unit owner would be able to raise new defenses, such as a “material breach of any duty set forth in the Condominium Property Act, the governing condominium instruments . . . or any applicable statute or ordinance applicable to the unit owner’s possession of the condominium unit.” A unit owner could also raise the defense that the association had an improper motive for bringing the action.
While the benefits to condominium owners are immediately apparent, opponents of the bills foresee the onerous burdens that the legislation would put on homeowners associations. The chief concern being that these bills would overwhelm homeowners associations with frivolous litigation, taxing their already limited resources. Opponents also fear that proposed legislation would become a catalyst for increased litigation, thereby piling up a caseload on an already backed up court system.
Regardless of which side you fall on this issue, it will be some time before the goals of HB4489, HB4490, and HB4491 can become a reality. Until then, it will be business as usual for unit owners and homeowners associations alike. Each bill is still in its infant stages and all three are set for debate in early March, 2016.