If your home is in foreclosure, odds are you are having a difficult time paying all of your bills. The bills you receive for condo association assessments or homeowners’ association assessments can be very high, sometimes several hundred dollars per month. Many Illinois homeowners facing tough financial times wonder whether this is one of the bills they can safely stop paying. However, because Illinois law gives condominium associations and homeowners’ associations special remedies under the Forcible Entry and Detainer Act (which is the law we use to evict people from homes), your failure to pay your assessments could result in you being evicted from your home by your condo association or homeowners’ association. If you want to continue living in your home while you work things out with your mortgage company, you need to keep paying your assessments.
The law says your association can evict you from the property to recover unpaid assessments.
The Illinois Condominium Property Act (765 ILCS 605/1, et seq.), which governs condominium associations, and the Illinois Common Interest Community Association Act (765 ILCS 160/1-1, et seq.), which governs homeowners’ associations and other forms of property associations, each give your association the power and obligation to assess to each property owner in the association the costs and expenses of maintaining the common areas of the community. These assessments are how, for example, they pay for the common areas to be mowed, landscaped, and plowed.
The obligation to pay these assessments attaches to the property and is a liability of the unit owner personally. So, for example, even if you lose the property in a foreclosure, you still would have liability for the assessments that went unpaid while you were the owner of the property.
Because the debt attaches to the property as well as to you personally, Illinois law gives your condominium or homeowner’s association the power to move against the property as well. Section 9-102 of the Code of Civil Procedure provides that:
[Your association is] entitled to the possession of lands or tenements may be restored thereto under any of the following circumstances:
(7) When any property is subject to the provisions of the Condominium Property Act, the owner of a unit fails or refuses to pay when due his or her proportionate share of the common expenses of such property, or of any other expenses lawfully agreed upon or any unpaid fine.
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(8) When any property is subject to the provisions of a declaration establishing a common interest community and requiring the unit owner to pay regular or special assessments for the maintenance or repair of common areas owned in common by all of the owners of the common interest community or by the community association and maintained for the use of the unit owners or of any other expenses of the association lawfully agreed upon
735 ILCS 5/9-102.
What these two sections mean is that your condo association or homeowners’ association can evict you or anyone living in the property, take possession of the unit, and rent the unit to a third party to recover their past-due assessments. Moreover, because it is nearly impossible to find a short term month-to-month tenant, your association can lease out the property for as long as they need to (typically in increments of one year) to get paid in full.
Evictions proceed much quicker than foreclosure cases. Your association will be able to evict you before your foreclosure case concludes.
Many people believe that because their foreclosure case has been pending for months or even years that because an eviction suit is filed against them that the foreclosure will wrap up long before the eviction case concludes. It would be a mistake to believe this. The typical eviction case in McHenry County, Illinois takes about three weeks from the date the eviction case is filed until an eviction order is entered. Even if you show up to the first court date for the eviction case, the judge will grant you no more than two weeks to hire an attorney and will promptly set the case for trial after the next court date. You should not expect to be able to drag out an eviction case against you similarly to the way your foreclosure case has been dragging out.
How you should proceed if your home is in foreclosure and you have assessments to pay.
Some condo and homeowners’ associations are quick to use the eviction remedy to recover unpaid assessments. Others are extremely reluctant to use this remedy. If it is your intention to stay in your home while the foreclosure case is pending (so that you can, for example, buy some time to work on a loan modification or short sale), you should take the risk and need to keep paying your assessments. If your home is in foreclosure, you need to speak with an experienced foreclosure defense attorney. There are many other pitfalls other than the trap created by not paying your assessments. Some bills like assessments you need to pay, and other bills you can put off paying without jeopardizing your right to possess and occupy your home. I can help you make these decisions, and I offer a free initial consultation for clients whose homes are in foreclosure to help them work out these issues.