Kenneth Michaels, Jr., Bauch & Michaels, LLC, Chicago
312-588-5000 | E-Mail Kenneth Michaels, Jr.
Appellate Court Held Document Requests Must Be Made with Particularity, Not as “Laundry Lists”
It is axiomatic in condominium law practice that irate unit owners and, sometimes their attorneys, believe that they will punish an association by sending out emails or letters burying an association with document demands accompanied by threats of recovery of attorneys’ fees if the responders do not drop everything to focus on document production. Frequently these requests for documents fail to comply with applicable statutes. Often such requests also include an instruction to “just produce everything electronically to my email.” Such requests explicitly violate the Illinois Condominium Property Act, 765 ILCS 605/1 et seq, (Condo Act). For more complete information on document requests of condominium associations, see IICLE, Condominum Law: Daily Operation Challenges, Representing the Condominium Association (2024 Ed), §§9.31 – 9.34.
Recently, the First District Appellate Court affirmed dismissal of a unit owner’s action for breach of §19 of the Act relating to condominium association records and producing copies of them (Count I) and an action for breach of fiduciary duty on the same basis (Count II). Blue Ocean 21-1, L.L.C. v. Greenway Court Condominium Association, 2025 IL App (1st) 232423-U at ¶11.
Facts
The case we consider this month has an unusual twist in that the condominium association that prevailed was in default throughout the proceedings and did not file a brief on appeal. 2025 IL App (1st) 232423-U at ¶¶3 – 4. On appeal plaintiff failed to produce any transcripts or a bystanders report. 2025 IL App (1st) 232423-U at ¶4. Plaintiff was a limited liability company which was a unit owner initially requested documents from the association in May 2022. 2025 IL App (1st) 232423-U at ¶9. In its holding, the Appellate Court described the request as “a blunderbuss request rather than one made with ‘particularity’ as the statute requires[.]” 2025 IL App (1st) 232423-U at ¶1. The manager responded promptly that she would forward the requested information at no cost. 2025 IL App (1st) 232423-U at ¶9. Some information was eventually produced but it appears hardly any of the requested records were produced.
While there were other counts such as defamation, only Counts I and II were appealed by the plaintiff. 2025 IL App (1st) 232423-U at ¶11. In August 2022, the plaintiff filed this lawsuit. 2025 IL App (1st) 232423-U at ¶7. By November 2022, a default order had been entered against the defendant condominium association, manager, management company, association president, and association treasurer. 2025 IL App (1st) 232423-U at ¶18. Initially prove-up was to take place in December 2022, but it was continued to October 2023. 2025 IL App (1st) 232423-U at ¶25. Meanwhile, an amended complaint and motion for prove-up were filed by the plaintiff, in part because the plaintiff had sold the unit in December 2022. 2025 IL App (1st) 232423-U at ¶¶13 – 14.
At prove-up, the trial court denied recovery under Count I relating to production of the association records because the plaintiff failed to show a proper purpose for obtaining the records. 2025 IL App (1st) 232423-U at ¶25. Also, as the fiduciary duty claim in Count II, recovery was denied for the same reason. Id.
Two months after entry of judgment plaintiff moved for leave to file a late notice of appeal which was granted. 2025 IL App (1st) 232423-U at ¶27. Eventually, only plaintiff filed a brief in the Appellate Court with the common law record. 2025 IL App (1st) 232423-U at ¶27.
Analysis
A condominium association may incorporate under the Illinois General Not For Profit Corporation Act of 1986, 805 ILCS 105/101.01, et seq. (NFP Act). See also 765 ILCS 605/18.1. Even if condominium associations do not incorporate, they have the powers and responsibilities of a NFP corporation under the NFP Act, to the extent the powers and responsibilities are not inconsistent with those in the Condo Act or the condominium instruments. 765 ILCS 605/18.3. In Illinois, condominium associations, like homeowners associations and other common-interest community associations, are almost always incorporated as not-for-profit corporations.
It is also axiomatic of corporate law throughout the United States that access to corporate records requires a “proper purpose.” It is a requirement under both the Illinois Business Corporation Act of 1983, 805 ILCS 5/7.75(b) and the Illinois General Not For Profit Corporation Act of 1986, 805 ILCS 105/107.75(a). The latter NFP Act applies to condominium associations. However, in 2018, the Illinois legislature removed the “proper purpose” requirement for access to condominium association records when it amended the Condo Act. The NFP Act was not so amended. This author has not found any precedent in Illinois since the amendments to §19 of the Condo Act as to whether the proper purpose requirement is still applicable (as not being inconsistent) under the NFP Act.
In our instant case, the Appellate Court never addressed any of this history or background relating to the proper purpose requirement. The trial court relied on the “proper purpose” requirement in its rulings. Nor did the Appellate Court address any inter-relationship between the NFP Act and Condo Act. Instead, the Appellate Court noted that it could affirm the trial court’s rulings based upon anything in the record. 2025 IL App (1st) 232423-U at ¶31. So, it shifted attention to the requirement that a document requester must describe requested documents with particularity.
The Appellate Court based its decision on the scope of requests from the plaintiff. The court began by examining §19 of the Condo Act.
First, subsection (a) of section 19 lists ten broad categories of records that every condo association must “keep and maintain … at the association’s principal office.” 765 ILCS 605/19(a)(1)-(10) (West 2022) (categories). In order to examine or make copies of these records, a member of the association “must submit a written request to the association’s board of managers or its authorized agent, stating with particularity the records sought to examined.” 765 ILCS 605/19(b) (West 2022).
Subsection (g) lists several categories of records that an association does not have to provide, unless otherwise directed by a court order. 765 ILCS 605/19(g) (West 2022).
2025 IL App (1st) 232423-U at ¶¶34 – 35. In this action, “plaintiff sought almost the entirety of categories (1) through (6) and (9), as well as records from categories of documents that an association is not required to turn over without a court order.” 2025 IL App (1st) 232423-U at ¶37. “If the drafters of the section had just meant ‘retype the statute,’ they would not have had to add the requirement that a requestor must state the desired documents ‘with particularity.’ 2025 IL App (1st) 232423-U at ¶38.
The Condo Act does not define the term particularity. However, the Appellate Court, which could not find a case defining the term in context of section 19, looked to Illinois rules requiring pleading with particularity as “a ‘requirement that allegations must be made with particularity heightens the pleading requirement beyond that which would normally be required to survive’ a challenge.” 2025 IL App (1st) 232423-U at ¶39, quoting Wells v. Reed, 2024 IL App (1st) 230502 at ¶27. Also dictionary definitions show that particularity refers to “a minute detail” or “the quality of being individual or unique.” 2025 IL App (1st) 232423-U at ¶39. The Appellate Court found that “[t]here was nothing unique or minute about plaintiff’s request, which sought ‘all’ records in each category, going back several years..” 2025 IL App (1st) 232423-U at ¶39. The Appellate Court affirmed the trial court based upon the document requests being a proverbial “laundry list” rather than made with “particularity.” 2025 IL App (1st) 232423-U at ¶43.
For more information about condominium law, see CONDOMINIUM LAW: GOVERNANCE, AUTHORITY, AND CONTROLLING DOCUMENTS (IICLE®, 2024). 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.