An Illinois appeals court ruled that a unit owner could cite the condominium association’s failure to maintain common elements as an affirmative defense against the association’s suit for nonpayment of assessments under Illinois’ Forcible Entry and Detainer Act (the Act). The law permits associations to acquire temporary possession of units and rent them out to pay the owner’s delinquency.

In this case, the association sought possession of a unit because the unit owner was delinquent in paying assessments. The unit owner counterclaimed that the association had failed to maintain the roof (common element) above her unit. She claimed that such failure constituted a breach of the association’s obligation to maintain common elements under the declaration. The association argued that its right to collect assessments is an absolute right not subject to such affirmative defense.

However, the court stated that neither the Illinois Condominium Act nor the Act supported the association’s contention. Rather, the court found that the exchanges of promises (with the unit owner promising to pay assessments and the association promising to maintain common elements) is akin to a landlord-tenant relationship, and as a result, the unit owner could cite the association's failure to maintain common elements as a defense.

Generally, courts have held that unit owner assessment obligations and association maintenance obligations are independent of each other. However, this case blurs that line. Although this case arises in the context of a state statute, it is important to be aware of judicial decisions and document provisions that could threaten an association’s authority to collect assessments.