## Facts

- Washington Courte Condominium Association—Four (the Association) was formed under the Illinois Condominium Property Act to manage and operate the condominium property and its common elements.
- Serious construction defects were discovered in the condominium’s common areas/common elements.
- In 1983, after obtaining the required owner approval, the Association retained counsel to sue the developer seeking substantial damages related to the defects.
- As the case progressed, the Association concluded it needed additional funds to pay accrued legal fees and costs and to provide for future litigation expenses.
- The Association called a special meeting of unit owners to consider a proposed special assessment and provided proper notice of the meeting.
- At the meeting, more than two-thirds of the unit owners approved the special assessment, and the Association arranged for review of bills before payment.
- Six unit owners (defendants), who collectively owned 6 of 44 units, paid special-assessment installments for about six months and then refused to make further payments.
- The defendants did not obtain any rescission or repeal of the special assessment; instead, they objected to the amount of fees, the attorney selected, and aspects of the meeting.
- The Association filed a forcible entry and detainer action under section 9-102(a)(7) of the Illinois Code of Civil Procedure, seeking possession of the units, delinquent installments, and attorney’s fees.
- After a jury trial, the trial court entered judgment for the Association. The defendants appealed, arguing the assessment was invalid because the litigation costs were “anticipated” common expenses that had to be included in the annual budget rather than funded by special assessment.

## Issues

1. Whether attorney’s fees and costs incurred (and expected to be incurred) in litigation against a condominium developer for construction defects are “non-recurring common expenses” that may be funded by special assessment under the Illinois Condominium Property Act, or instead must be treated as “anticipated” common expenses within the Association’s annual budget.
2. If those litigation costs should have been budgeted annually, whether the special assessment was invalid and therefore could not support a judgment for possession, delinquent installments, and attorney’s fees against unit owners who stopped paying.

## Decision

- The Appellate Court of Illinois, First District, Second Division affirmed the judgment for the Association.
- The court held that the developer-litigation legal fees and costs were properly treated as a non-recurring common expense and could be imposed through a special assessment approved by the requisite two-thirds vote at a properly noticed meeting.
- Because the special assessment was valid, the defendants remained obligated to pay their shares; the Association was entitled to recover delinquent installments and attorney’s fees and to obtain possession under section 9-102(a)(7).

## Legal Principles

- Under the Illinois Condominium Property Act, a non-recurring common expense may be separately assessed against unit owners when approved by the affirmative vote of at least two-thirds of the unit owners voting at a meeting called for that purpose with proper notice.
- Extraordinary legal expenses tied to major, one-time litigation concerning defects in common elements may qualify as non-recurring common expenses rather than ordinary operating costs included in an annual budget.
- When a condominium association follows the Act’s meeting, notice, and voting requirements for a special assessment, unit owners generally remain bound by the assessment even if they later disagree with the amount, the attorney selected, or the wisdom of the litigation.
- A validly adopted condominium assessment can be enforced through the remedies authorized by statute, including collection of delinquent amounts and, where applicable, possession and attorney’s fees in a forcible entry and detainer action.

## Conclusion

Washington Courte holds that a condominium association may fund extraordinary legal fees and costs from developer-defect litigation through a properly approved special assessment as a non-recurring common expense under the Illinois Condominium Property Act; unit owners who later stop paying remain liable, and the association may enforce the obligation through statutory remedies, including delinquency recovery, attorney’s fees, and possession.


Washington Courte Condominium Association v. Cosmopolitan National Bank, 523 N.E.2d 1245 (1988)