2021 Illinois Legal Updates and Case Law Summaries

2021 Illinois Legal Updates and Case Law Summaries

2021 Illinois Community Association Legal Updates Several changes in 2020 Illinois case law have impacted the management of condominium, homeowner (HOA), and townhome community associations. Below is an amended summary our law firm has compiled with implications of these legal updates. Since 1983, KSN has focused our practice on community association law (condominium, homeowner, townhome), landlord/tenant law, and the cooperative form of ownership. Additionally, we represent clients in business matters including real estate transactions, collections, and property tax appeals. We have four Chicagoland office locations, serving thousands of clients and communities throughout Illinois, Indiana, and Wisconsin. Our attorneys are also licensed in Arizona, Florida, and Missouri. ksnlaw.com

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Cook County RTLO – Passed 1/28/2021

Applies to all Cook County suburbs that do not have an ordinance that meets the standards under Sec. 42-801(D). This applies to a Condominium Association renting out units, Sec. 42-802(7).

Chicago Shared Housing Ordinance Amendment – Passed 9/9/2021

Makes a number of changes to the Shared Housing Ordinance including, a prohibition one day rentals, registration with the Chicago Department of Business Affairs and Consumer Protection, increased registration fee, and a number of increased penalties for violation of the ordinance.

SB154 – Amendment to the Housing Authorities Act – Public Act 102-0283

Amends the Housing Authority Act to include new rules regarding pets in multifamily rental housing unit that is 500 square feet or larger and has been acquired, constructed, or rehabilitated with any money from the Trust Fund after January 1, 2022 and that was designated for affordable housing for low and very low-income families.

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Additionally, the amendment creates 310 ILCS 65/18, which creates new rules of pets in affordable housing projects.

Effective Date: 1/1/2022

SB255 – Amendment to the Mortgage Foreclosure Article – Public Act 102-0086

Amends the Mortgage Foreclosure Article of the Code of Civil Procedure. Provides that the order confirming the sale of property may approve the mortgagee's fees and costs (i) arising between the entry of the judgment of foreclosure and the confirmation hearing, and (ii) incurred on or after the date of execution of an affidavit under subsection (a) of Section 15-1506 and prior to the judgment but not included in the judgment, those costs and fees to be allowable to the same extent as provided in the note and mortgage and in Section 15-1504. Effective immediately.

Effective Date: 7/9/2021

SB508 – Amendment to the Property Tax Code – Public Act 102-0519

Amends the property tax code. Illinois Legislative summary provides,

“ Replaces everything after the enacting clause. Reinserts the provisions of the engrossed bill with changes. Removes language from the engrossed bill providing that the adjustment shall be made by a supplemental levy. Further amends the Property Tax Code. Provides that, in Cook County, an application for judgment and order of sale for the 2018 annual tax sale that would normally be held in calendar year 2020 may not be filed later than October 1, 2021. Provides that no subsequent annual tax sale may begin earlier than 180 days after the last day of the prior delayed tax sale, and no scavenger tax sale may begin earlier than 90 days after the last day of the prior delayed tax sale. Provides that there may be more than 2 consecutive years without a scavenger sales if a tax sale has been delayed as a result of a statewide COVID-19 public health emergency. Provides that, in a county with 275,000 or more inhabitants, for any annual tax sale conducted on or after the effective date of the amendatory Act, the county collector shall adopt a single bidder rule sufficient to prohibit a tax purchaser from registering more than one related bidding entity at a tax sale. Provides that a county with less than 275,000 inhabitants may adopt a single bidder rule. Provides that, for levy year 2022, the aggregate extension base of a home equity assurance program that levied at least $1,000,000 in property taxes in levy year 2019 or 2020 under the Home Equity Assurance Act shall be the amount that the program's aggregate extension base for levy year 2021 would have been if the program had levied a property tax for levy year 2021. Provides that the county collector may employ an electronic automated bidding system for conducting scavenger tax sales. Amends the Home Equity Assurance Act. Provides that the governing commission of a home equity assurance program that levied at least $1,000,000 in property taxes in levy year 2019 or 2020 may not levy any property tax in levy year 2021. Effective immediately. ”

Effective Date: 8/20/2021

SB636 – Amendment to Section 18 of the Condominium Property Act – Public Act 102-0162

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This amendment amends Section 18 of the Condominium Property Act, by allowing the governing documents, through newly submitted declarations or amendment to declaration, to provide that the majority of the Board of Directors is comprised of unit owners who occupy their units as their primary residence. It further provides that the governing documents may not require that more than a majority is comprised of unit owners who occupy their units as their primary residence. The main issue raised by this new legislation is the part that states, “… may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence …” If this section is made applicable to the Association through an amendment, the same amendment can also remove the lesser amount specified in the Declaration. (a)(1) The election from among the unit owners of a board of managers, the number of persons constituting such board, and that the terms of at least one-third of the members of the board shall expire annually and that all members of the board shall be elected at large; if there are multiple owners of a single unit, only one of the multiple owners shall be eligible to serve as a member of the board at any one time. A declaration first submitting property to the provisions of this Act, in accordance with Section 3 after the effective date of this amendatory Act of the 102nd General Assembly, or an amendment to the condominium instruments adopted in accordance with Section 27 after the effective date of this amendatory Act of the 102nd General Assembly, may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence; provided that the condominium instruments may not require that more than a majority of the board shall be comprised of unit owners who occupy their unit as their principal residence;

Effective Date: 1/1/2022

SB1672 – Amendment to the Illinois Insurance Code – Public Act 102-0328

Amends the Illinois Insurance Code to require insurance companies that provide insurance for injury to a person or injury to or destruction of property arising out of the ownership, lease, or rental of residential property shall record certain information for dog related incidents. This information shall be reported annually to the Department for a two (2) year period beginning on January 1, 2022.

Effective Date: 1/1/2022

SB1847 – Amendment to the Illinois Human Rights Act – Public Act 102-0036

Amends the requirement for obtaining an equal pay registration certificate. Likely will not apply to Associations, as the requirement only applies to private employer with over 100 employees that is also required to file an Annual Employer Information Report EEO-1 with the Equal Employment Opportunity Commission. Businesses with less than 100 employees must certify in writing it is exempt from the requirements.

Effective Date: 6/25/2021

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SB2664 – Amendment to the Illinois Notary Public Act – Public Act 102-0160

This bill amends the Illinois Notary Public Act by allowing a notary to notarize documents outside the presence of the person signing by using audio-video communication. It requires the notary to apply for an electronic notary commission.

Effective Date: 7/1/2022

HB51 – Amendment to the Smoke Detector Act – Public Act 102-0046

Amends the Smoke Detector Act by removing language that smoke detector requirements shall not apply to dwelling units and hotels within municipalities with over 1,000,000 inhabitants.

Effective Date: 1/1/2022

HB58 – Amends the Counties Code by Adding Section 3-5048 – Public Act 102-0110

An unlawful restrictive covenant means any recorded covenant or restriction that is void under Section 3-105 of the Illinois Human Rights Act which purports to forbid or restrict the conveyance, occupancy, or lease thereof on the basis of race, color, religion, or national origin. A common interest community association, condominium association, unit owners' association, residential housing cooperative, or master association, acting solely through a majority vote of the Board, may execute and file a restrictive covenant modification. Additionally, if the Board receives a written request by an owner or member of the Association to exercise its authority to file a restrictive covenant modification, then the Board has 90 days to investigate the claim and, if it is determined to be an unlawful restrictive covenant, shall execute an file a modification. If the Board fails or refuses to execute an file the modification the owner or member may bring an action to compel the Association to act, and the owner or member is entitled to collect reasonable attorneys’ fees and costs from the Association. The Board is also required to written notice to the owners and members of the modification and to provide a copy of modification within 21 days after receiving a recorded copy of the documents.

A restrictive covenant modification shall include:

(1) a complete copy of the original instrument containing the unlawful restrictive covenant with the language of the unlawful restrictive covenant stricken; and

(2) a petition to modify an unlawful restrictive covenant, as provided in subsection (d).

A petition to modify an unlawful restrictive covenant shall:

(1) be signed by the record owner of the property or, in the case of an entity under paragraph (2) of subsection (b), be accompanied by a certification that a majority of the governing body of the entity has agreed to the restrictive covenant modification;

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(2) reference the property index number or unique parcel identification code of the property for which the original instrument containing the unlawful restrictive covenant is recorded; and (3) include any other information that the recorder or State's Attorney considers necessary in carrying out the requirements of this Section.

Effective Date: 1/1/2022

HB644 – Amendment to the Homeowners’ Energy Policy Statement Act – Public Act 102-0161

The amendment allows an Association to determine the specific configuration of the solar energy system as long as it does not reduce the production of solar energy by more that 10%. It also reduces the time for adopting a policy statement from 120 days to 90 days. The amendment also changes the time required for an Association to approve an application from 90 days to 75 days. The amendment also changes the buildings that are subject to the act. The Act does not apply to buildings that are greater than 60 feet in height, which is an increase from the original 30 feet in height. It also does not apply to a building that has a shared roof and is subject to a homeowne rs’ association, common interest community association, condominium unit owners' association. A shared roof means: (i) serves more than one unit, including, but not limited to, a contiguous roof serving adjacent units, or (ii) is part of the common elements or common area.

Effective Date: 7/26/2021

HB644 – Amendment to the Homeowners’ Energy Policy Statement Act – Public Act 102-0161

The amendment allows an Association to determine the specific configuration of the solar energy system as long as it does not reduce the production of solar energy by more that 10%. It also reduces the time for adopting a policy statement from 120 days to 90 days. The amendment also changes the time required for an Association to approve an application from 90 days to 75 days. The amendment also changes the buildings that are subject to the act. The Act does not apply to buildings that are greater than 60 feet in height, which is an increase from the original 30 feet in height. It also does not apply to a building that has a shared roof and is subject to a homeowners’ association, common interest community association, condominium unit owners' association. A shared roof means: (i) serves more than one unit, including, but not limited to, a contiguous roof serving adjacent units, or (ii) is part of the common elements or common area.

Effective Date: 7/26/2021

SB636 – Amendment to Section 18 of the Condominium Property Act – Public Act 102-0162

This amendment amends Section 18 of the Condominium Property Act, by allowing the governing documents, through newly submitted declarations or amendment to declaration, to provide that the majority of the Board of Directors is comprised of unit owners who occupy their units as their primary

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residence. It further provides that the governing documents may not require that more than a majority is comprised of unit owners who occupy their units as their primary residence. The main issue raised by this new legislation is the part that states, “… may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence …” If this section is made applicable to the Association through an amendment, the same amendment can also remove the lesser amount specified in the Declaration. “(a)(1) The election from among the unit owners of a board of manager s, the number of persons constituting such board, and that the terms of at least one-third of the members of the board shall expire annually and that all members of the board shall be elected at large; if there are multiple owners of a single unit, only one of the multiple owners shall be eligible to serve as a member of the board at any one time. A declaration first submitting property to the provisions of this Act, in accordance with Section 3 after the effective date of this amendatory Act of the 102nd General Assembly, or an amendment to the condominium instruments adopted in accordance with Section 27 after the effective date of this amendatory Act of the 102nd General Assembly, may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence; provided that the condominium instruments may not require that more than a majority of the board shall be comprised of unit owners who occupy their unit as their principal residence;”

Effective Date: 1/1/2022

Domini Wood v. Evergreen Condominium Association, 2021 IL App (1st) 200687

The plaintiff unit owner was utilizing her condominium unit for short-term rentals through AIRBNB. The Board responded by imposing fines against her on the ground that short-term AIRBNB rentals were prohibited by the declaration. The Board relied on two provision in the declaration to justify its decision that short-term rentals were prohibited. First, the declaration stated “no Unit shall be leased, subleased or assigned for a period of less than thirty (30) days …” Thus, by using her condominium unit as a hotel, the plaintiff was violating the ban on short-term leases. Second, the declaration stated “[n]o industry, business, trade, occupation or profession of any kind, commercial, religious, educational or otherwise, designed for profit, altruism, exploration or otherwise shall be conducted, maintained, or permitted or any part of the Property.” The short-term rental of the condominium unit in exchange for money from guests who occupy the condominium unit on a transient basis is a commercial or business use of a condominium unit that violates Section 11(b). Court rules that appellate that prohibition in Declaration on short-term leases was because Owner was not entering into leases with guests. Instead, her rental of the Subject Unit through AIRBNB is a license, as defined by AIRBNB’s own terms of service, and a lease and a license are distinct le gal concepts. The key distinction between a lease and a license is a lease provides a renter with exclusive possession of

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property while a license entitles the renter to use of the property while leaving management and control of the property with the owner.

However, the court agreed with the Association’s argument that the Declaration’s prohibition on commercial use of a Unit restricts short-term leasing as short-term AIRBNB rentals are businesses. A business is defined by as “a usually commercial or mercantile activity engaged in as a means of livelihood”, “a commercial or sometimes an industrial enterprise” or “dealings or transactions especially of an economic nature” and the unit owner was engaged in a business enterprise because she is providing h er short-term renters with a service and a product — use of her unit as an accommodation — in exchange for payment.

2021 Illinois Community Association Case Law Updates

Westgate Townhome Ass’n v. Kirsch (Second District, March 2, 2021)

On October 11, 2019, Westgate Townhome Association, herein a fter referred to as “ Association ”, filed a complaint to evict Kirsch, herein after referred to as “ Unit Owner ”, for nonpayment of assessments. Association is an Illinois Condominium Association. The amount due to the Association arose for the fines assessed against the Unit Owner for violation of the Association ’s rules and regulations, for allowing her dog to urinate on her neighbor’s lawn. The evidence that gave rise to the rule violation was a video from the neighbor showing the dog urinating on the lawn. The board viewed the video, but the refused to allow the Unit Owner to view the video. The Board conducted a hearing and found the Unit Owner in violation of the Association ’s rules and regulations. The trial court was conducted as a bench trial and found for the Unit Owner because the Association introduced no evidence substantiating the claim the dog damaged the neighbor’s lawn, including, failing to produce the video, an invoice for law repairs, or any other documentation. The Association filed a motion to reconsider, which was denied. The Association timely appealed. The appellate court affirmed the ruling of the trial court because they found that the Board acted in bad faith by not allowing the Unit Owner to review the video. The Court relied on Boucher , 2018 IL App (1st) 162233 . The Court held that, “ None of this evidence was turned over to Kirsch. Because of this, Kirsch was deprived of an opportunity to respond to the video evidence before the Board made its determination … B ecause the Board did not timely turn over all available evidence to Kirsch, the trial court was justified in determining that the Board did not act in good faith. ” Westgate Townhome Ass'n v. Kirsch , 2021 IL App (2d) 200373-U, ¶ 24.

James A. Blazina Revocable Trust v. Trust (Second District, May 5, 2021)

The Homeowners Association is subject to certain covenants, with the most recent amendment titled the “2013 Covenants”. The 2013 Covenants require that inground pools to be constructed in the back of the property. Clause IV, paragraph 17 of the 2013 Covenant also set forth a process by which an owner

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can get a variance from the Association. A homeowner, Benck, entered into an agreement with the Association, pursuant to paragraph 17, to build a pool and cabana on the side of her property. This was because the back of her lot was mostly wetlands and not suitable for constructing a pool, so this was reason to permit the variance. Benck’s neighbor, Blazina, filed a complaint to enjoin the construction of the pool. The third amended complaint is the subject of the appeal. In the complaint, Blazina alleged that the 2013 Convenants were void because they were not adopted in accordance with the original covenants for the Association, herein after referred to as the 1991 Covenants. Her allegation is based on the requirement that the signed consent of two-thirds of the owners, with said signatures be recorded. It is undisputed that the actual signatures were not recorded, but an affidavit averring that the signatures had been obtained was recorded. The Association moves to dismiss the complaint because Blazina “neglected to quote the sentence immediately following paragraph C, which stated that ‘[a] recorded certificate shall be deemed conclusive evidence thereof with regard to compliance with the provisions of this section.’" James A. Blazina Revocable Tr. v. Trust, 2021 IL App (2d) 200387-U, ¶ 12. Blazina responded to the motion to dismiss by claiming that, "Paragraph 17 *** states, 'The Association hereby reserves the right to enter into agreements with the Owner of any Lot or Lots without the consent of owners of other Lots of adjoining or adjacent property to deviate from any or all of the Covenants ***.' *** Paragraph 17 makes no reference to the Board, only the Association. id . at ¶ 15.

The Circuit Court granted the Association’s motion to dismiss. Blazina appealed.

The Appellate Court first addressed the amendment procedure in the 1991 Covenants. The Court found that the filing of an affidavit was in compliance with amendment procedure because the final paragraph provides for an alternative means by which proof of the signature requirement can be met. Therefore, the Court found that the 2013 Covenant is valid because it complied with the amendment procedure in the 1991 Covenants. Next, Blazina argues that the variance can only be granted if two-thirds of the Association approve it because it is essentially an amendment to the 2013 Covenants. She argues that paragraph 17 clearly lists the Association, rather than the Board, so that means the amendment procedure applies. The Court disagrees because they found that the 2013 Covenants clearly provide that the Association operates through its Board of Directors. Moreover, the Court found that Blazina’s interpretation of paragraph 17 would render the provision meaningless. For the foregoing reasons, the Court affirmed the decision of the trial court.

Bd. Of Dirs. v. Bourdage (First District - Fourth Division, May 6, 2021)

On June 20, 2018, the Board of Directors of Winnitt Park Condominium Association, herein after referred to as Association, filed a complaint for eviction against Bourdage, herein after referred to as Unit Owner. Count 1 of the complaint alleged the non-payment of assessments from July 31, 2017 and October 27, 2017. Count 2 of the complaint sought a sale of her unit in a judicial sale for multiple violations of the governing document. The Unit Owner alleged that she was not provided an opportunity to defend herself because she was unavailable on the date of the hearing selected by the Association.

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The Association held the hearing at a meeting on August 24, 2017, even though the Association knew that the Unit Owner would be out of town. The Unit Owner filed a motion to dismiss count 2 because the cause of action was not permitted in a forcible entry and detainer action. The trial court granted the dismissal of count 2 without prejudice. The trial court found for the Unit Owner and the Association timely appealed.

August 24 Order

The Appellate Court found that the August 24 hearing did not provide the Unit Owner an opportunity for a hearing. The Court noted that not only was the hearing held at a time that the Unit Owner was on vacation, the other times presented were at times that the Association was working. The Association tries to claim on appeal that the Unit Owner refused the hearing by not selecting the times offered; however, the Court found that the Unit Owner was in regular communication with the Board and communicated that the times presented would not work because of her work schedule and vacation. Moreover, the Court was unpersuaded by the argument that due process is not denied if a party fails to avail themselves. The court found that the evidence clearly showed the Unit Owner wanted to attend, but the Association failed to engage in a discussion to schedule the hearing so that the Unit Owner could attend. The Association makes an additional argument that it offered the Unit Owner an opportunity for a hearing on November 20 as a sort of appeal. The Court stated that an appeal of an adverse decision does not cure the initial issue of being deprived of notice and an opportunity to be heard. For these reasons, the Court affirmed the trial courts finding that the Unit Owner was deprived of notice and an opportunity to be heard. The Court did not address the issue with the Association not following the procedures under the governing documents.

January 31 Order

The Association also claims that the trial court could have relied on its January 31 order, which were separate fines imposed due to separate violations of the governing documents. The Court again affirmed the finding of the trial court, finding that the Association failed to provide 30 days’ notice as is required by section 9-104.1(a) of the Forcible Entry and Detainer Act. The Court found that if the Association wanted to evict for the fines imposed on January 31, they were required to issue a 30 days’ notice in accordance with the Forcible Entry and Detainer Act. They were not able to rely on the 30 days’ notice issued for different fines imposed on A ugust 24.

Newport Condo. Ass'n v. Blackball Corp. 401(K) PSP (First District – Second Division, May 25, 2021)

Newport Condo alleged that in October 2014, Blackhall was assigned the mortgage on a condominium unit that was owned by Shana Pearson. The following day, Pearson quit claimed her interest to Blackhall and that Pearson owned assessments on the unit at the time of the transfer. Blackhall granted a mortgage on the property to Wu. In early 2017, Blackhall transferred the property to Wu pursuant to a deed in lieu of foreclosure. Wu filed an answer and counterclaim to the first amended complaint and sought a determination that Newport Condo's lien for unpaid assessments had been extinguished. Wu

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argued that Newp ort Condo’s lien for unpaid assessments had been extinguished pursuant to section 9(g)(3) of the Illinois Condominium Property Act. The trial court granted Wu summary judgment against Newport Condo’s complaint and summary judgment in favor of Wu’s counter claim. Newport Condo appealed. The appellate court found that there was no dispute that Newport Condo had a lien against the unit for the unpaid assessments. Newport Condo makes the argument that section 9(g)(3) only applies when the lien sought to be ext inguished is inferior to the new owner’s interest in the unit. Newport Condo does not support this argument. The Court held that section 9(g)(3) applies to a mortgagee who receives a deed in lieu of foreclosure, regardless if it is inferior to the Associations lien.

Sunnyside Elgin Apts., LLC v. Miller (Second District, June 29, 2021)

This case stems from a question of whether a Brookside a condominium association, had standing to sue public officials, on behalf of the unit owners for property taxes levied against the individual unit owners. “One of the public entities that plaintiffs identified in their complaint was Riley School, whose district covers, among others, residents of Brookside. Plaintiffs alleged that Riley School had an excess accumulation in the (1) education fund (count XIV), (2) transportation fund (count XVI), (3) operations and maintenance fund (count XVII), and (4) liability and insurance fund (count XVIII).” Sunnyside Elgin Apartments, LLC v. Miller , 2021 IL App (2d) 200614, ¶ 6. Riley School intervened and moved to dismiss asserting that Brookside lacked standing and the trial court granted Riley School’s motion to dismiss. Brookside timely appealed. The appellate court found that Section 9.1 and 10 of the Condominium Property Act grants the Brookside standing to seek relief on behalf of the individual unit owners from tax assessments. The Court additionally found that even without relying on the Act, the Association would have standing under the common law. The Illinois Supreme Court adopted the U.S. Supreme Court test for associational standing from Hunt v. Wash. State Apple Adver. Comm'n , 432 U.S. 333, 97 S. Ct. 2434 (1977). See Int'l Union of Operating Eng'rs, Local 148 v. Ill. Dep't of Emp't Sec. , 215 Ill. 2d 37, 293 Ill. Dec. 606, 828 N.E.2d 1104 (2005). The court found Brookside met the test for associational standing under the Hunt test. Finally, the court commented that the guidance between the Property Tax Code and the Condominium Property Act are less than clear, and the legislature is free to revisit the statutes. Reversed and remanded.

1400 Museum Park Condo. Ass'n v. Kenny Constr. Co., 2021 IL App (1st) 192167 (August 5, 2021)

1400 Museum Park Condominium, hereinafter referred to as the Association, filed a lawsuit for breach of the warranty of habitability and breach of contract against the general contractor for the construction of the building, hereinafter referred to as the General Contractor, for a construction defect related to the hot water supply riser.

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The circuit court dismissed the complaint based on the decision of the Illinois Supreme Court in Sienna Court Condominium Association v. Champion Aluminum Corporation , 2018 IL 122022, ¶ 30. The First District affirmed, finding that there was no contractual privity between the general contractor and the unit owners, relying on the Sienna decision. The appellate court applied the economic loss rule because the Association’s injury was purely ec onomic and therefore the unit owners of the Association must be privity of contract with the General Contractor. The Association tried to make an argument about assignment of contract from the developer to the general contractor, but the appellate court was not persuaded by these arguments as they weren’t supported by fact or law. Therefore, based on the decision of this case, the Sienna decision precluding the warranty of habitability applying to subcontractors was extended to preclude it from applying to general contractors when there is no privity of contract.

Channon v. Westward Mgmt., 2021 IL App (1st) 210176-U

Prior unit owners filed a class action against the management company for charging them excessive and unreasonable fees to provide them with the documents required to be provided to prospective purchasers. The circuit court denied the motion to dismiss but certified a question of law to the first district. The prior unit owners requested the documents pursuant to section 22.1. The management company provided a standard form for requesting the documents along with the charge for each document. The prior unit owners were charged $245.00 for obtaining the documents. “The certified question is whether section 22.1 of the Condominium Property Act (7 65 ILCS 605/22.1 (West 2016)) provides an implied cause of action in favor of a condominium unit seller against a property manager, as agent of a condominium association or board of directors, based on allegations that the property manager charged excessive fees for the production of information required to be disclosed to a prospective buyer under that statute.” Channon v. Westward Mgmt. , 2021 IL App (1st) 210176-U, ¶ 13. The appellate court first determined if an implied right of action exists under the statute before considering the question of agency. The court found that there is clearly no express right of action under section 22.1; however, the appellate court found that there was an implied right of action based on the four-element test laid out by the Illinois Supreme Court. See Metzger v. DaRosa , 209 Ill. 2d 30, 36, 282 Ill. Dec. 148, 151, 805 N.E.2d 1165, 1168 (2004); Fisher v. Lexington Health Care , 188 Ill. 2d 455, 460, 243 Ill. Dec. 46, 48-49, 722 N.E.2d 1115, 1117-18 (1999). Finding that the prior unit owners have an implied private right of action under section 22.1, the appellate court second issue was whether this action only exists against the Association and the Board, or if extends to the property manager as agent. The court stated, “W e agree with the trial court's reasoning. Although section 22.1 itself does not specifically mention that the statutory duties of a condominium unit owners' association may be performed by its managing agent, we see no reason why this would not be one of the "services" for which an association's board of managers may engage a managing agent under section 18(a)(5). 765 ILCS 605/18(a)(5) (West 2016).” Channon v. Westward Mgmt. , 2021 IL App (1st) 210176-U, ¶¶ 31. The appellate court concluded that unit owners have a

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private cause of action against the property manager based on allegations of charging excessive fees to produce information to be disclosed under section 22.1. Please note that this is not a final determination on whether the management company is liable for excessive fees. The appellate court is certifying that the unit owners have a private cause of action against the management company under section 22.1. The unit owners still need to prove that $245 for the documents was unreasonable.

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