100 Roberts Road Business Condominium Association v. Khalaf
2013 IL App (1st) 120461
Ill. App. Ct.2013Background
- Plaintiff 100 Roberts Road CondominiumAssociation filed forcible entry and detainer against Khalaf, Horn, Azulay, Seiden, and unknown occupants for unpaid common assessments since 2004.
- A lien for $12,910 was recorded; notice and demand for possession were served; suit filed November 24, 2010.
- Default judgments were entered against Khalaf and Horn; Azulay and Seiden appeared and defended; trial held July 6, 2011.
- Trial court awarded unpaid assessments to plaintiff but reduced by $2,000 already paid and by alleged mitigation failure; later dismissed for improper purpose.
- Appellate court reversed, holding improper motive not germane and mitigation not required; remanded for judgment in plaintiff's favor for full assessments plus costs and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is improper motive germane to forcible entry and detainer? | Azulay/Seiden lack of possession issue; motive should not matter. | Improper motive bears on validity of suit and defense should be allowed. | Improper motive not germane; reversed trial court. |
| Is mitigation a proper defense in this action? | Mitigation not required; action seeks only unpaid assessments. | Mitigation should reduce damages. | Mitigation not required; reversed remand to enter full amount. |
| Did defendants waive these defenses by failure to plead? | No objections preserved; waiver should apply. | Failure to plead constitutes waiver. | Waiver not upheld; issues considered on merits. |
Key Cases Cited
- Sawyier v. Young, 198 Ill. App. 3d 1047 (1990) (damages not germane where possession not contested)
- Reid v. Arceneaux, 63 Ill. App. 2d 113 (1965) (fraud claims not germane when possession is not disputed)
- American National Bank v. Powell, 293 Ill. App. 3d 1033 (1997) (germane defense limits in forcible detainer)
- Bismarck Hotel Co. v. Sutherland, 92 Ill. App. 3d 167 (1980) (forcible detainer proceedings are limited to possession-related issues)
- Rosewood Corp. v. Fisher, 46 Ill. 2d 249 (1970) (definition of germane as closely allied or connected)
- Knolls Condominium Ass'n v. Harms, 202 Ill. 2d 450 (2002) (statutory interpretation for Forcible Entry and Detainer Act)