{ "id": 1073736, "name": "LAKE HINSDALE VILLAGE CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID, Defendant-Appellant (Heirs of Bernard F. DaSilva, Deceased, et al., Defendants)", "name_abbreviation": "Lake Hinsdale Village Condominium Ass'n v. Department of Public Aid", "decision_date": "1998-07-20", "docket_number": "No. 3-97-0500", "first_page": "192", "last_page": "199", "citations": [ { "type": "official", "cite": "298 Ill. App. 3d 192" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "179 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801353 ], "year": 1997, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0184-01" ] }, { "cite": "181 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821406 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "423-24" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0415-01" ] }, { "cite": "181 Ill. 2d 169", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821398 ], "year": 1998, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0169-01" ] } ], "analysis": { "cardinality": 718, "char_count": 17702, "ocr_confidence": 0.719, "pagerank": { "raw": 6.380125665320789e-08, "percentile": 0.39160429816564596 }, "sha256": "3bb78a82c455a6fab5a453f39f58d8a784ce6bbb0afcf5d48b6d93bdf714f9cf", "simhash": "1:cbfa90a2af3e29c5", "word_count": 2855 }, "last_updated": "2023-07-14T16:29:38.148323+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LAKE HINSDALE VILLAGE CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID, Defendant-Appellant (Heirs of Bernard F. DaSilva, Deceased, et al., Defendants)." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the opinion of the court:\nPlaintiff, the Lake Hinsdale Village Condominium Association (the Association), sued under section 9 of the Condominium Property Act (Act) (765 ILCS 605/9 (West 1996)) to foreclose a lien for unpaid common expense assessments. Bernard and Wilhermina DaSilva, both deceased by the time of the suit, originally owned the unit. Defendant, the Department of Public Aid (Department), also asserted a lien against the property for medical assistance payments it made to or on behalf of Wilhermina DaSilva. Relying on section 3 \u2014 10 of the Illinois Public Aid Code (Code) (305 ILCS 5/3 \u2014 10 (West 1996)), the Department claimed it could satisfy its lien from the foreclosure proceeds before the Association could do so to recover any condominium assessments that came due after the Department recorded its lien. The remaining defendants having defaulted, the Association moved for summary judgment. The trial court granted the motion, ruling that the Association\u2019s lien was wholly prior to the Department\u2019s because the initial default that triggered section 9 of the Act occurred before the Department recorded its lien.\nThe Department appeals. It argues that the trial court erred in (1) giving the Association\u2019s lien priority insofar as it is based on assessments that came due after the Department recorded its lien, and (2) holding that various incidental expenses, beyond the overdue assessments, were included in the Association\u2019s prior lien.\nWe agree in part with the trial court and in part with the Department. We hold that (1) the Association\u2019s lien for unpaid assessments has priority over the Department\u2019s lien, even as to assessments for the months after the Department recorded its lien; (2) the statutory lien does not extend to expenses other than those specifically listed in subsection 9(g)(1) of the Act (765 ILCS 605/9(g)(l) (West 1996)); and (3) the trial court must determine the amount of reasonable attorney fees and other incidental expenses due under the Association\u2019s statutory lien. We affirm in part, reverse in part, and remand for a determination of the precise value of the Association\u2019s lien.\nThe Association\u2019s foreclosure complaint, filed May 10, 1996, alleged the following facts. On October 25, 1994, the Association filed a notice of its lien claim with the Du Page County recorder of deeds. The Association asserted that Bernard and Wilhermina DaSilva owed the Association $2,487.09 and that the Association had a lien for this amount. On November 21, 1994, the Association took possession of the unit via a forcible entry and detainer judgment. The total due from the unit owners through May 6, 1996, was $14,565.33 plus \u201cinterest and assessments accrued hereinafter, advances for real estate taxes, storage fees, cleaning fees, insurance, court costs, title costs, etc., and [the Association\u2019s] attorneys fees.\u201d\nThe Association added the Department as a defendant; the other defendants were defaulted. The Department claimed that it had a lien against the property for $95,616.38 it paid to or on behalf of Wilhermina DaSilva in medical assistance pursuant to article V of the Code (305 ILCS 5/5 \u2014 1 et seq. (West 1994)). The Department claimed that its lien had priority over the Association\u2019s lien insofar as the latter secured debt created by unpaid assessments coming due after July 8, 1994, the date that the Department recorded its lien. Thus, the Department could satisfy its debt from the proceeds of a foreclosure sale before the Association could use those proceeds to recover monthly assessments that came due after July 8, 1994. The Department conceded that the Association\u2019s lien for assessments due before July 8, 1994, had priority over its lien.\nThe Department relied on section 3 \u2014 10.2 of the Code, which grants the Department a lien with priority over \u201cany lien thereafter recorded or filed\u201d (305 ILCS 5/3 \u2014 10.2 (West 1994)). Also, the Department invoked the following language in section 9(g)(1) of the Act:\n\u201c(1) If any unit owner shall fail or refuse to make any payment of the common expenses or the amount of any unpaid fine when due, the amount thereof together with any interest, late charges, reasonable attorney fees incurred enforcing the covenants of the condominium instruments, rules and regulations of the board of managers, or any applicable statute or ordinance, and costs of collections shall constitute a hen on the interest of the unit owner in the property prior to all other liens and encumbrances, recorded or unrecorded, except only *** (b) encumbrances on the interest of the unit owner recorded prior to the date of such failure or refusal which by law would be a lien thereon prior to subsequently recorded encumbrances.\u201d 765 ILCS 605/9(g)(l) (West 1996).\nThe Association moved for summary judgment, asserting that, as a matter of law, the full amount of its lien under section 9 of the Act had priority over the Department\u2019s competing lien. According to the Association, its lien arose on October 15, 1993, when the unit owners first became delinquent on their assessments. An affidavit the Association\u2019s president filed February 11, 1997, detailed the assessments and other expenses the Association claimed. These included the cost of packing and storing the owners\u2019 personal property and repairing the unit, all of which the Association did pursuant to the forcible entry and detainer judgment; legal fees from July 1993 through the present; and past-due maintenance fees for October 1993 through February 15, 1997.\nIn response, the Department argued first that, under St. Paul Federal Bank for Savings v. Wesby, 149 111. App. 3d 1059 (1987), a condominium association\u2019s lien does not arise before assessment payments are in default. Therefore, according to the Department, the Association\u2019s lien could not have priority over the Department\u2019s lien insofar as the former lien was based on assessments not payable until after July 8, 1994. The Department argued secondly that the Association\u2019s lien did not cover some of the Association\u2019s claimed expenses, such as repairing the unit, because these costs were not \u201ccommon expenses,\u201d an \u201cunpaid fine,\u201d or \u201cinterest, late charges, reasonable attorney fees [or] costs of collections\u201d (765 ILCS 605/9(g)(l) (West 1996)). Furthermore, there was no evidence of how much of these charges came due before the Department recorded its lien.\nAfter argument, the court granted the Association\u2019s summary judgment motion and entered a judgment of foreclosure and sale (see 735 ILCS 5/15 \u2014 1506 (West 1996)). In concluding that all of the Association\u2019s lien had priority over the Department\u2019s lien, the court analogized foreclosing the lien to foreclosing a mortgage. In each situation, the monthly increase in the amount of money in default eats into the money available to satisfy a lien that arose after the initial default. The court also ruled that the Act, \u201cat least in spirit,\u201d allowed the Association to collect what it spent to maintain the unit after it took possession.\nThe court added that, as a matter of public policy, denying full priority to a condominium association\u2019s lien would work a severe hardship on the member unit owners. By law, a condominium association must maintain common areas while relying wholly on the condominium units as security for the substantial expenses it thereby incurs. The trial court reasoned that, as a condominium association is a far smaller group than the taxpaying public, the latter is in a better position to absorb the hardship from unsatisfied judgments, and spreading such costs among the whole public is fairer than endangering the association\u2019s ability to meet its obligations. After the trial court denied its motion to reconsider, the Department appealed.\nThe parties recognize, as did the trial court, that whether and to what extent a condominium association\u2019s common expense lien has priority over the Department\u2019s public aid lien is an issue of first impression. The Department argues first that the association\u2019s lien trumps the Department\u2019s lien only insofar as it relates to assessments that came due before the Department recorded its lien. The Department observes that section 9(g)(1) refers specifically to a unit owner\u2019s failure to make \u201cany payment of the common expenses *** when due\u201d and makes \u201cthe amount thereof\u2019 a lien on the property (emphasis added) (765 ILCS 605/9(g)(1) (West 1996)). Furthermore, the Department notes, this lien is inferior to encumbrances \u201crecorded prior to the date of such failure or refusal\u201d (emphasis added) (765 ILCS 605/ 9(g)(1) (West 1996)). From this phraseology, the Department concludes that each default, which occurs only after a payment is due, creates a lien that may or may not be prior to the Department\u2019s, depending on when the Department recorded its lien.\nFollowing the trial court\u2019s reasoning, the Association analogizes the obligation to pay assessments per the condominium, declaration to the obligation to make monthly payments under a mortgage instrument. Thus, the Association analogizes its security interest to that created by a mortgage and its right to foreclose and collect upon default to a mortgagee\u2019s right to collect and foreclose upon the mortgagor\u2019s default on a payment. According to the Association, only one default is necessary to create a lien on any undue assessments; insofar as priority is concerned, all defaults relate back to the initial one that triggered the Act\u2019s protections. For the reasons that follow, we agree with the Association.\nWe believe that each party sets forth a plausible reading of section 9(g)(1). The language could be read to create an individualized lien for each defaulted payment as it comes due. However, we could also read section 9(g)(1) to discuss a single continuing obligation, created upon the first default but expandable depending on later defaults, that the Association may enforce by its lien.\nBecause the language is susceptible to more than one meaning, we must engage in statutory construction. Our ultimate goal of course is to ascertain and effectuate the intent of the legislature. In re Marriage of Mitchell, 181 Ill. 2d 169, 173 (1998). We may consider that the legislature did not intend inconvenient or unjust results. McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 423-24 (1998).\nWe believe that the legislature meant the statute to function as the Association urges. We agree with the trial court that there is a reasonably serviceable analogy between the foreclosure of a mortgage (involving the security for a debt created by the mortgage loan) and the foreclosure of a condominium association\u2019s lien for common expenses (involving the security for a debt created by a default on the obligation under the condominium declaration). More crucially, we agree with the trial court that to give section 9(g)(1) the meaning the Department urges would work a needlessly harsh result. The condominium association relies exclusively on members\u2019 payments to fulfill obligations that are set by law (and practical necessity). To allow other parties\u2019 potentially unlimited claims to take priority over the association\u2019s might well put the association in an impossible position.\nThe creation of such perils is not necessary to allow claimants such as the Department here to protect their interests. Under section 9(j) of the Act, an encumbrancer of a condominium unit may request the condominium association to set forth the unpaid common expenses for the unit. If the association does not comply within 20 days, its lien on the unpaid common expenses that come due prior to the request become subordinated to the encumbrancer\u2019s lien. 765 ILCS 605/9(j) (West 1996). Otherwise, as is true in the mortgage setting, the encumbrancer may pay the overdue common expenses and thereby give its lien priority. 765 ILCS 605/9(j) (West 1996).\nThis section allows lienholders such as the Department here to minimize their risk by acting promptly before the unpaid assessments become excessively onerous. Also, we read this section to imply that, absent such action by the lienholder, overdue association payments can have priority over nonassociation liens even if these liens were recorded before the due date of the payments. This reinforces our conclusion that the overdue payments relate back to the original date that the Association\u2019s lien was perfected, i.e., the date of the first default.\nWe do not believe Wesby compels a different result. Wesby does stand for the proposition that there is no lien until there is a debt or some other obligation; therefore, merely filing the condominium declaration does not create a lien. Wesby, 149 Ill. App. 3d at 1067. However, the character of the association\u2019s lien was not further in issue in Wesby, and we believe that opinion leaves the question here unresolved.\nWe hold that the Association\u2019s lien has priority over the Department\u2019s lien and that this priority extends to all overdue common expense payments that the Association\u2019s foreclosure suit seeks to recover. The trial court properly included all these payments in the Association\u2019s lien. However, the trial court also found that the Association\u2019s lien under section 9(g) of the Act also included a variety of other expenses, including attorney fees, the costs of repairing the DaSilvas\u2019 unit, and the cost of storing items. This brings us to the second issue on appeal: whether the trial court improperly applied section 9 to expenses to which the Association\u2019s lien does not extend. We hold that the court did err in including certain expenses in calculating the Association\u2019s statutory lien and that a remand is necessary so the court may determine the exact amount of the Association\u2019s lien.\nThis issue is also one of statutory construction, particularly of section 9\u2019s treatment of assessments of common expenses. We keep in mind that a court should read all portions of an act in relation to each other and as part of a coherent whole. McNamee, 181 Ill. 2d at 428; In re A.P., 179 Ill. 2d 184, 197 (1997).\nSection 9(g)(1), as pertinent here, restricts the Association\u2019s lien to the amount of unpaid \u201ccommon expenses or the amount of any unpaid fine when due, *** together with any interest, late charges, reasonable attorney fees *** and costs of collections.\u201d 765 ILCS 605/ 9(g)(1) (West 1996). This language restricts a condominium association\u2019s lien to common expenses and fines and the costs the condominium association incurs in collecting overdue common expenses and fines. Section 9(a), which requires each unit owner to pay his proportionate share of the common expenses, defines this proportionate share as a ratio of the unit owner\u2019s \u201cpercentage of ownership in the common elements set forth in the declaration.\u201d (Emphasis added.) 765 ILCS 605/9(a) (West 1996). (Section 9(e) also allows the assessment of individual units for the costs involved with limited common elements. 765 ILCS 605/9(e) (West 1996). These limited common elements are actually a portion of the common elements, not parts of the units. See 765 ILCS 605/2(s) (West 1996).) Section 9, read as a whole, plainly has as its focus the assessment and collection of the expenses for maintaining the common elements, including the limited common elements that serve a particular unit, not expenses uniquely associated with a particular unit itself.\nWe think it plain that neither the overdue common expenses and fines nor the cost associated with recovering these obligations encompasses the expenses an association incurs in repairing a particular unit of which it has taken possession or in storing goods from that unit. These costs are not common expenses and have nothing to do with the maintenance of the common elements. They do not benefit the general class of unit owners either directly or in proportion to the unit owners\u2019 respective interests in the property. Although the Association\u2019s spending for repair and storage ultimately resulted from the DaSilvas\u2019 failure to pay their assessments, this extra cost cannot reasonably be called \u201ccommon expenses\u201d or the \u201ccosts of collection\u201d of the common expenses (see 765 ILCS 605/9(g)(l) (West 1996)). Whatever measures the Association has to collect them, they do not factor into the lien created by section 9(g)(1). Thus, the Association may not claim that any security interest it has for these costs has priority over the Department\u2019s lien.\nWe also hold that the trial court could not properly award the Association all its attorney fees, some of which must have resulted from collecting sums the trial court erroneously included under the Association\u2019s lien. Also, it is not clear whether the trial court adequately determined to what extent the Association\u2019s attorney fees and other costs were otherwise reasonable. Therefore, on remand, the trial court should decide the Association\u2019s reasonable attorney fees for work done in recovering the defaulted assessments.\nThe judgment of the circuit court of Du Page County is affirmed in part and reversed in part, and the cause is remanded.\nAffirmed in part and reversed in part; cause remanded.\nGEIGER, EJ., and DOYLE, J., concur.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "James E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and John E Schmidt and Jill A. Dougherty, Assistant Attorneys General, of counsel), for appellant.", "Peter H. Jagel and Gabriella R. Comstock, both of Knuckles & Jagel, of Naperville, for appellee." ], "corrections": "", "head_matter": "LAKE HINSDALE VILLAGE CONDOMINIUM ASSOCIATION, Plaintiff-Appellee, v. THE DEPARTMENT OF PUBLIC AID, Defendant-Appellant (Heirs of Bernard F. DaSilva, Deceased, et al., Defendants).\nSecond District\nNo. 3\u201497\u20140500\nOpinion filed July 20, 1998.\nJames E. Ryan, Attorney General, of Chicago (Barbara A. Preiner, Solicitor General, and John E Schmidt and Jill A. Dougherty, Assistant Attorneys General, of counsel), for appellant.\nPeter H. Jagel and Gabriella R. Comstock, both of Knuckles & Jagel, of Naperville, for appellee." }, "file_name": "0192-01", "first_page_order": 212, "last_page_order": 219 }