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Condominium Law FLASHPOINTS December 2020

Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago
312-588-5000 | E-Mail Kenneth Michaels, Jr.

A Holiday Glogg of Opinions and a New IICLE® Condominium Law Treatise

For our year-end conclusion of one of the most unpredictable years in most of our lifetimes, we will succinctly review some recent opinions that do not require lengthy analysis but are still noteworthy.

No New Evidence on Motion for Reconsideration

In Brandenberry Park Condominium Ass’n v. Abu Taleb, 2020 IL App (1st) 200442, the appellate court affirmed denial of a motion to reconsider an award of attorneys’ fees for an association when the movant’s motion was not based on a change in the law, the trial court’s misapplication of the law, or newly discovered evidence. The appellate court recognized that such motions for reconsideration, essentially presenting new facts, are nothing more than taking a “second bite of the apple.” 2020 IL App (1st) 200442 at ¶20, quoting O’Shield v. Lakeside Bank, 335 Ill.App.3d 834, 781 N.E.2d 1114, 1118, 269 Ill.Dec. 924 (1st Dist. 2002). Because these motions for reconsideration are based on the trial court’s discretion, the applicable standard of review is an abuse of discretion. In this action, a judgment of almost $49,000 was entered against the defendant unit owner who had moved a supporting wall in violation of the declaration. Nearly $35,000 of this amount was for the association’s attorneys’ fees. The appellate court’s opinion is difficult at times to track because it appears the appellate court confuses the parties at times, referring to the plaintiff and the defendant incorrectly in the facts.

At the trial court’s hearing on the fee petition, the defendant did not request an evidentiary hearing nor offer evidence to refute the reasonableness or necessity of the attorneys’ fees and costs. 2020 IL App (1st) 200442 at ¶14. The defendant’s motion for reconsideration attached an affidavit from his architect analyzing the association’s invoices and documents, which had previously been available to the defendant. The defendant submitted the affidavit as newly discovered evidence (2020 IL App (1st) 200442 at ¶21), but the trial court denied the motion, finding that the new evidence was available to the defendant before the court’s hearing when it entered judgment (2020 IL App (1st) 200442 at ¶18). Additionally, because the defendant did not request an evidentiary hearing on the fee petition, the court was left with only its own knowledge and experience to assess the fee petition. The fact that an appellate court may have reached a different conclusion is not a basis for finding an abuse of discretion. 2020 IL App (1st) 200442 at ¶¶23 – 24.

Section 22.1 Disclosures Found Not Discriminatory

Dismissal of a charge of discrimination based on race or national origin and another for retaliation were sustained when the petitioners claimed that the condominium association discriminated against them by noting in a “payoff” letter produced in connection with the sale of the unit (1) that 80 percent of the floor area needed to be covered with carpeting for soundproofing purposes and (2) that the declaration required the new owners to pay at closing one month’s assessment plus an additional three months’ assessments for the reserves. In re Patel, Charge No. 2019CH2025, 2020 WL 6115198, *1 (IHRC Oct. 8, 2020). The Illinois Human Rights Commission (IHRC) was probably referring to the association’s §22.1 disclosure letter (see 765 ILCS 605/22.1) in its opinion when it referred to the association producing a payoff letter. This letter caused the petitioners’ first sale to collapse. The petitioners argued that these provisions had not been included in letters for sellers of two other units with all hardwood floors when the unit owners were not of the same national origin as the petitioners. When the petitioners later sold their unit to other buyers, the association added a $215 charge for removing a satellite dish, which the petitioners argued was retaliation for filing a discrimination charge.

The IHRC dismissed the petition for lack of substantial evidence when the association produced evidence that the association used similar language in other disclosure letters. Similarly, the retaliation charge was dismissed because the association produced evidence that the rule authorizing the charge had been adopted before the petitioners attempted to sell their unit. Thus, the charge was not an adverse action against the petitioners for purposes of finding a retaliation. The Commission sustained the dismissal of these charges.

Request for Reasonable Accommodation Not License To Harass Association

Dismissal of charges of (1) failing to accommodate reasonably a disability, (2) harassment for requesting a reasonable accommodation, and (3) harassment in retaliation for requesting a reasonable accommodation were sustained when the petitioner failed to show all elements of her accommodation claim and it was not unreasonable for the condominium homeowners’ association to seek a state court order against her. In re Constanza, Charge No. 2020CH0109, 2020 WL 6691184 (IHRC Oct. 30, 2020). In 2014, after a neighbor had sprayed pesticides outside the petitioner’s condominium unit, the petitioner became sick and required ER visits. She asked the property manager to direct the neighbor to not spray around the petitioner’s unit, which the manager did. The petitioner repeated this request each time a new manager was appointed. In February 2019, the petitioner submitted a physician’s letter requesting a reasonable accommodation of no chemical use by neighbors to the exterior grounds near the petitioner’s unit. The association’s attorney sent a letter thereafter advising that chemical use would be allowed with 72 hours’ notice. Flurries of e-mail communications escalated with the petitioner at one point sending 26 e-mails to various people in the association in one day. The association’s attorney requested that the petitioner cease sending e-mails to anyone but the attorney with a limit of only one e-mail per day. Notwithstanding the request, the petitioner continued e-mailing people in the association other than the attorney. In May 2019, the attorney requested a meeting with the petitioner, the board of directors, and the property manager. The petitioner was threatening litigation. When the petitioner refused to attend the meeting, the attorney sent a request that the physician answer numerous questions regarding the accommodation the petitioner was requesting through her physician’s letter. The petitioner accused the association of harassment. In June 2019, the association filed an action seeking injunctive relief. This charge ensued.

To sustain a prima faciecase for denial of a reasonable accommodation, the petitioner must provide substantial evidence that

(1) she has a disability within the meaning of the [Illinois Human Rights Act, 775 ILCS 5/1-101, et seq.]; (2) the association knew or should have known that petitioner has a disability; (3) petitioner requested that the association make one or more reasonable accommodations in the rules, policies, or procedures; (4) the requested accommodations were necessary to afford petitioner an equal opportunity to use and enjoyment of the premises; and (5) the association denied or unreasonably delayed petitioner’s request for a reasonable accommodation. 2020 WL 6691184 at *3, citing In re Wedell, Charge No. 2012CH3672, 2018 WL 6625459, *2 (IHRC Nov. 28, 2018).

While the petitioner showed the first three elements of the prima facie case, she failed to show that the requested accommodation was necessary to afford her equal use and enjoyment of her property and that the association acted unreasonably when it requested further information. 2020 WL 6691184 at *3. Although the petitioner argued that she had already provided all the requested information to the association through her e-mails, she could not produce any evidence of having done so. The information requested was in the purview of federal regulations or guidance regarding reasonable accommodations under the Fair Housing Act (FHA), Pub.L. No. 90-284, Title VIII, 82 Stat. 81 (1968). The IHRC opinion noted that “[u]nder limited circumstances, a homeowner may be able to prove that engaging in the interactive process was futile given the actions of the housing provider, but Petitioner has not done so here.” Id.

Regarding the harassment charges, the Commission found that the association’s filing of a complaint against the petitioner was not “so severe or pervasive as to make it significantly burdensome for her to continue to reside in her home.” 2020 WL 6691184 at *4. It found that it was not unreasonable for the association to seek a court order against her after she refused to engage in an interactive process. Id. The petitioner failed to produce evidence to show dismissal of the harassment charges were error.

New Release: Two-Volume IICLE Condominium Law Handbook

We close 2020 with an unabashed promotion of IICLE’s two-volume treatise on Illinois Condominium Law, which is in the process of being published for 2021 release. The first volume, CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS, focuses on the creation and overall structure of condominiums and common interest community associations. The second volume, CONDOMINIUM LAW: DAILY OPERATING CHALLENGES, dives into the nuts and bolts of operations. IICLE gathered some of the most experienced condominium practitioners in the state for this endeavor. The entire project would not have succeeded without the work of IICLE’s excellent Publication Department team. Quality publications such as these two CONDOMINIUM LAW volumes would not exist but for the volunteer authors and IICLE staff. Thank you.

Happy Holidays to all!

For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE®, 2021) and CONDOMINIUM LAW: DAILY OPERATING CHALLENGES (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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