district in rendering its decision in the spanish court to matter acknowledged in its decision that by allowing unit owners to claim an offset to their assessments based on a purported breach of covenants to repairing tame the common elements it was placing itself in the small minority of jurisdictions around this country that so allow such a remedy there is a reason that courts from california to new york from texas and georgia up to michigan disagree with this decision and the reason for that is that condominiums live and breathe through their assessments with the financial integrity of the institution and the ownership rights of all of the unit owners within the building or imperiled only by failing to acknowledge the distinctions between a multi unit apartment building on the one hand and condominium associations on the other was the second district able to say that in alleged breach of carbon and may be raised as a germane defense in a forcible entry entertainer proceeding however a lease is not the equivalent of a declaration and the board of directors is not the equivalent of a landlord and assessments are not the equivalent of rent as a matter of statute and as a matter of how a see that supports the statute such fundamental distinctions between these two forms of presidency compel the conclusion that the second district's decision must be right to bring a lawsuit and in fact the second district in this case taking allegations that were in the affirmative defenses that were identical to those such forth in the counterclaim agreed but the trial court judge who in ruling on a motion to s strike severed the counterclaim and is allowing it to proceed to this day in another courtroom in lee county just a unit owner is not deprived of an opportunity to protest the conditions of his or her unit they may bring a lawsuit just like any property owner in the state they simply i would submit are not permitted to do so in the context of a forcible entry into tain a proceeding which this court has found is to be a summary perceiving and made only  stablished for very distinctive types of defenses that can be raised in the context of a forceful entry detainer proceeding all of them if i may summarize them really are issues going to did you really pay did somebody fail to account for your payment is that is the agreement that creates the object to pay somehow flawed that is not as we have here a substantive determination bad unlike a question that may be presented in a letter in a landlord tenant dispute such as under attack spring you know is this a suitable environment for somebody to live in in the condominium setting we're dealing with the application of the business judgment role and so we're opening up if we were to permit defenses of the sort that there were in jack spring and which the second district said can be extended into condominium settings here we would be opening up what has to be a summary proceeding into an enormous under which a unit owner can at least defend the question of whether or not there is a possession in the specific context of condominium associations yes it's a matter of policy but those policies  act which has the language that a unit owner may not assign delegate transfer or surrender or in any way avoid the duties and responsibilities of ownership as a unit owner and any such a second district in its decision in this case really in my humble estimation terms they had on its head and it said by by not identifying assessments here with the with the legislature was really intending was that you can find an excuse for not paying assessments and i would submit that other courts in this country who have evaluated language that is very similar to what we have in eighteen hew have concluded that that is not an appropriate interpretation such language was plain and susceptible to only one meaning and that one meaning is that there is no legal justification for withholding assessments and that such language is a clear demonstration or a clear choice by the legislature but an owners of obligations to pay are absolute and they can't exert in their own private disputes by withholding assessments but rather that they need to pick a different remedy and there remedy here i don't think that that's the kind of motivation that is at issue here i think they are traditionally the sort of motivations that have been considered are ones involving race where there is some sort of prejudice that some volved by the board and they're trying to get out  certain category of i want to within the association i do not believe that that subsection of or the established defense to force detain or actions properly would include the sort of defense that i understand whatever authorities they were bringing it as a separate lawsuit the question here is if we are to allow the forcible entry entertain or act to continue to be used as a summary perceiving because there has been a policy or an could raise that they could bring an injunction action certainly the courts of the state are filled with situations where unit owners will bring in a mature suitable some reaction that can be disposed of in the short period where the condo was uninhabitable well i think my reading of the decision if i may is that the court talks about breaches of covenants and one of the critical distinctions between an apartment complex on the one hand which has a lease that covers the very narrow issues that pertain to a limited period of time for the limited purpose of inhabitation is that in the declaration we're dealing with a whole you know panoply of issues and i think that permitting or allowing a unit owner to make a unilateral determination about whether there was uninhabited billet he opens the floodgates to some very critical issues that will quickly i think consume the forcible entry entertainer at notably in this case there were no findings made that the unit was uninhabitable this was simply an allegation that was alleged by the union owner and her complaint  so there has been no determination made and i think that that is the proper determination to be made in a separate court where the court has the opportunity to evaluate the type of issues that would be raised in uninhabitable necessarily you're going to be looking at things that pertain to what did the board know what did they do it is it is not inconceivable in the condominium setting that you may have a damaged unit but no breach by the association and what's critical in that regard is the condominiums rights and duties are interpreted under the veil of fiduciary obligation and if we are to allow those kinds of analyses to be heard in the context of a forceful entry entertainer action we could well end up with a situation where the analysis takes several years as it has in the companion case to this law separate court room yet we have affirmative defenses with the exact same allegations that the second district says properly should be heard in the constant in the context of a forcible entry in detain or proceeding what are we to make of that are we going to have a risk of ink system burdick's i think so and yes but connor claims allegations have taken several years to come to trial given the nature of the injury is that a fair representation counter claim all have exactly the same allegations until you get to the very last pair the one of the affirmative defenses entitle region hominids in that in essence is seeking some sort of a stop all to claim that you're entitled to assessments the second or from a defense is for side off to see clearly they're seeking some sort of monetary acquittal and some determination and then the tone of the claim will not denominated this particular type of action seeks monetary damages my point is that the analysis necessary in order to construe the allegations of each of those of the affirmative defenses as well as the counterpoint is going to be identical at the end of the day whether the counterclaim a seeking money or the affirmative defenses are seeking money in the form of a side off the analysis that must be conducted is the same and it is simply materially different than what you would have in an analysis  undertaken in the context of a landlord tenant just there you're looking at my circumscribed period of time what is the duration of the lease and the purpose of the lease is for providing a roof over your head and an inhabitable decision in jack's brain has not been extended to commercial rental situations and i would submit that the differences between the residential and commercial setting are owner and owner of a condominium association has a whole variety of rights they can run for the board but you can petition to have non performing board members removed they  can look at the budget in fact the this the statute requires that they have an opportunity to examine the budget and to comment on the budget if they feel that there is insufficient attention being paid to a particular problem in the building they can comment on it they can attend board meetings none of these rights are available to a tenant so it makes a degree of sense a high degree of sense to have certain protections available to a tenant in the landlord tenant setting that are not available to an owner in a condominium setting courts around the country have had an opportunity under their own condominium aps to consider the powers that are behind these acts courts and in this instance i'm quoting from the processor case out of massachusetts have noted that a system that would tolerate a unit owners refusal to pay an assessment even a seemingly meritorious defense would threaten the financial integrity of the fight of the entire the condo association a fairly powerful remedy and they take it if this were a lawsuit by the condo owners association seeking to recover the assessment simply a suit for monetary as opposed to seep in to recover possession of the property certainly if in the event that the association were to decide that it wishes just to bring a garden variety breach of contract claim any of the defenses would be available it is because of the specific wording of the forcible entry into tanner act that limits defenses to the issues that are peculiar to that statute that the a unit owner is restricted in the context of a proceeding right under that good morning my name is norman lamb i represent it's a carlson we please the court the issue presented in this case as to whether or not the form of defense of breach  contract on the part of the association is viable defense of the forcible entry into turner an act has already been resolved by this court in two different cases the rosewood corporation versus fisher case and the jack spring versus little sutton in peterson case both cases are dispositive of the issue here and this court in both cases defined the term germane as it appears in the forcible entry into turner act as being closely as meaning closely allied to related to inmate jack spring case of course it involved a landlord action against the tenant and the tenant raised the affirmative defense of breach of an express warranty in the lease a failure to repair as well as as implied warranty defense and this court held that both contract just as the controlling document of a condominium is a contract the declaration of a kind of medium is a contract as the public or referred to several different stories i refer to several different authorities every appellate court that has addressed this issue has held that the declarations constitute a contract by was considered a contract contract principles  contracts no matter what the subject matter and even those service statutes like landlord tenant ordinances or landlord tenant statutes may modify the relationship between the parties in a given area but the other owner the go there is rise and fall together the other owners are certainly members of the association but under the statute of the unlike kind of many i'm property and the statute basically provides for kind of mediums and kind of mediums are creature of statue by a neighbor link an association to contract with each unit member in the contract another started was rais reply brief and i don't believe it's correct the contract is between each unit member and the association as an entity even though other owners are members of the association they are no hopeless when it comes to repairing the common elements that may affect his or her unit is certainly a condo owner can run for the board but the kind of owner until that kind of owner gets on the board doesn't make decisions and as in this case if there is water seeping through the unit for years and the board willfully refuses to do anything about it my client the condo owner is helpless doesn't have a say can't repair the roof can't repair the exterior brickwork can't participate in any decision especially if she is shut out of the process so when  the concept of condominium that the unit owners collectively not as individuals maintain the common areas but the concern is if one person or many persons refused to make to pay that is true but that seems to me to be a problem with the management of that particular kind of many in a board rather than a problem with the law i don't believe the law should change to protect a dysfunctional board or a board that is not responsible or not disciplined enough to attend to its problems the result that spanish court seeks here really promotes and incentive not to repair the common elements it promotes an incentive not to for an association not to fulfill its obligations to maintain and repair common elements properly and of these issues to answer justice remus question if these issues aren't walk quickly and in a forcible entry into turner action what's the alternative for the unit owner  time she was involved as a plaintiff in a personal injury action against the association arising from a defective elevator she tried to resolve this informally through the management company she had been in her unit and i'm looking at the water damage there were photographs taken we've we tried this case in august and there is or might be all types of extenuating circumstances council but that my question is in direct response to your answer to justice arraignments question now that's correct that's correct yes but on it and we and she did pursue that but she waited for two years over two years to try to resolve this problem as it got worse and worse and worse she cannot sell her unit because the water damage kept getting worse and worse she she is not a person who wants to go to court believe me and it's expensive to do this it's expensive to hire the experts it's expensive to go through the discovery disputes which happened in this case there were discovery sanctions by the trousers and by the trial judge it is a process as a matter of public policy that you don't owners should not have to go through if there is another way to resolve this and a quick way to resolve it is to raise it as an affirmative defense and either an action for money damages or in a forcible entry between or action to force the issue and get it resolved but but getting back to your question and i think this is an important question a contract here as the appellate court pointed out is between the association and the unit owner the defense was breach of contract not the business judgment rule those concepts come into play when the individual board members are involved in litigation this was a straight breach of contract affirmative defense that the association couldn't and didn't have the right to possession because they couldn't enforce a contract that they had already breached they had been in breach for over two years and my client at the time she stopped paying was ready to prove that because she had already lined up her ducks with a contractor and knew exactly what the problem was and so these questions as to whether or not you know she should be divested of her fees simple ownership and n n f e d action because the association willfully refuses to perform its duties under its contract and it shouldn't be treated any differently than any other contractual relationship between two parties and there is no public policy reason us the question about public policy i think the essential issue here is that we have a condominium association and maybe a condominium industry a property management industry that's asking this court to and graft a public policy exception to a private contractual relationship that the contract principles should apply if somebody breaches they're not  titled to enforce if somebody breaches the other party has the right to assert that as an affirmative defense in a money action or an action for possession illinois is the only state in the union that allows an f p action in the hands of a of an association which does not have the symbol which does not own face the but which didn't pay the taxes which didn't pay the mortgage which doesn't pay the utilities which has a kept the upkeep on the inside and it is a draconian remedy and my point is if the association is going to be dracula then it's got to have clean hands it has to be in compliance with its duties under the declaration which is a contract  the the the the case law from the other jurisdictions really don't apply here and i know this court has heard cases about public policy from other and other jurisdictions because condominiums are statute and the office other states number one don't have the remedy of forcible entry detainer in the hands of an association and number two have completely different statutes so these decisions are really relate back to statutes and what sort of public policy here this court has said over and over again we look to the constitution we look to statutes we look to establish case law there is nothing in illinois public policy that favors an exception for condominium associations in this context nothing as a matter of fact the public policy goes the other way to your position that only when it is uninhabitable must be material it must be a material breach which is the same for any contract a party who says you can't read you cannot force the contract that affirmative defense is based on  material breach it can't be frivolous and i think this whole thing about the chaos and and the financial stability is patently ridiculous because there are too many practical pressures on unit owners number one it's expensive number two it's risky number three there's a shift fee shifting provision in the kind of any amount that shifts the fees back to the unit owner if the unit owners position is frivolous or the unit owner loses not too many unit owners are going position and my client i can tell you did not take a frivolous because position because we proved our case in august in waukegan after we can have trial but what i want to say about public policy to address your question is that unlike the case where this court upheld the the federal i'm sorry the f e d s action as a remedy unlike that case the interests here want to be illinois legislature propose an amendment that w and turned it down three times there is the public policy there is your statement of public policy from the illinois legislature who considered this issue and unlike noles we reversed it it clarif had done exactly what it did with the counterclaim separated out but if you agreed with the condo board in the affirmative defenses that throws up with the forcible been stayed well you proceeded in the counterclaim or how would that work and i'm sorry judge i didn't i don't i'm wondering what would have happened if the court had not allowed or or that the court had not allowed the affirmative defense of and it separated out  have been forced to pay the assessments while she pursued her remedy and a separate action at other words the fiction would have gone ahead and less cheap as she did i mean she paid her assessments she paid the legal fees she posted bond that rare fickle i think it is particle i think it's practical because the only issue is breach of contract it's not breach of pretty sure the duty it's not the business judge will rule the individuals generally are not involved and if there are involved there should be parties because the individuals don't bring the action for possession the individual board members do not bring that action is brought in the name of association as the contracting party as in here in this case there was a breach of contract count by the association because of the  contract not only with third persons but also with each individual unit owner so the only issue is whether or not the association breached this contract in material way which would preclude the association from gaining possession takes maybe a couple days to try that issue and that's it and then and i might add in terms of you know it consistent results once the two parties litigate that issue it's residue the car is registered a credit for anything else and of the association wins and you so she should watch the way we didn't breach the contract then that's a big result for the association any damage case because that might preclude litigation or to damage case so it really promotes ace eight faster more expeditious resolution of these issues rather than prolong it but from a policy standpoint i know i've got a couple minutes this result the result asked for by spanish court is contradict public policy it's not supported by public policies contrary illinois law and policy promotes mutuality of obligation not mutually exclusive exclusive ity where one party has to perform another doesn't mean what college policy promotes performance of contractual obligations not providing a disincentive to associations this situation shouldn't be treated any differently than any other contract and there is nothing in our statutes there is nothing in the constitution there's nothing in our case law that says otherwise where do we draw the line and what next party will come into court and say well our promise is mutually exclusive to the bad guys promise contract law is the bedrock of much of what we do most of what we do it's fair it's balanced and it should be applied in a balanced way here thank you very much i asked the court affirm the second district's opinion i think it's correct and i  thank you and just briefly and i don't wish to belabor this point but i do think it's inappropriate for there to be an introduction to matters that are outside the record here and certainly for counsel to to represent to this court that he has proven his case when there has been a verdict rendered is is an appropriate in answer to earlier questions that were raised by this justice absolutely the declaration is for the benefit of all condominium unit owners it is with all kind of mania unit owners the forcible excuse me the condominium property act in section nine point two when it notes that the association has available to it as a remedy speaks in terms of the remedy of the forcible entry entertainer act being available for the benefit of all other unit owners it could not be more clear the association does pay for utilities and other such things that is the purpose among many others assessments in this matter and that is one of the key distinctions to be drawn between a landlord tenant scenario there is no dollar for dollar exchange between the rent that's paid and the and the space that is provided in the context of a condominium association the obligations of the board of directors and the association are many and all of the assessments go to pay all of those things so when a unit owner engages in self help and withholds they are necessarily withholding necessary funds not only for the very repairs that they claim are necessary but also for other necessary functioning of the association one of the things that i think is very important in this was discussed in the search decision there can be damage with out there being a breach in the police or case as here there was a unit owner who contended that there were  roof into their unit and what the court noted is that there can be damage with out a breach in the condominium of the in the context of a condominium association because the analysis turns on the reasonableness of the actions that are taken by the board counsel also spoke about the fact that this this dispute should be treated no differently than a garden variety contract and i would submit that under the coach run condo case that we cited in their grief that is absolutely not the case we have a statute and the statute must govern the this dispute and indeed it provides that to the extent that the declaration has provisions that are in conflict with the kind of the condo prevail or excuse me the kind of money and property act prevails there is no incentive for unit owners in that condominium association who sit on the board not to make repairs they are investors in their units and when an association building suffers by reputation from claims that the building is not doing what it needs to everybody suffers in the form of their association are properly charged against this unit over the various courts around the country that i have cited and whose decisions i have cited in my brief talk about the fact that even if a defense of my unit owner is meritorious it cannot be permitted to jeopardize the functioning of the entire association and this goes back again to the fact that declarations are a contract in common with your fellow unit owners by tenants in all the common elements it is for these reasons that i would submit that the second district's decision in spanish court too must be reversed in so far as have a lot of the affirmative defenses that are the