Gotham Lofts Condominium Assoc. v. Kaider (IL)

Gotham Lofts Condominium Assoc. v. Kaider, 2013 IL App (1st) 120400.


Summary: The trial court is required to hold an evidentiary hearing on the owner’s motion to vacate judgment of a condominium association's possession in a forcible entry and detainer action.


Facts: In 2009, plaintiff, Gotham Lofts Condominium Association(GLCA), won a judgment of possession for defendant Donald Kaider’s condominium due to his failure to pay assessments for common expenses. GLCA took possession of the property in March 2010 and turned the property over to a property manager, who then located a tenant and negotiated a lease. 6 months later, GLCA discovered some serious irregularities in its accounts, fired the property manager, and hired a new company. Upon an audit of their accounts, GLCA was informed that the tenant in the Kaider property had not paid any rent since she moved in. Further, she refused to pay back rent and moved out. At this point, 13 months had past since GLCA took possession, so they requested leave of the trial court to lease the property to a tenant who would actually pay rent. Kaider did not appear at the hearing and the motion was granted.


Kaider later filed an emergency motion to vacate the judgment and restore possession to himself, asserting that his delinquency had been satisfied by the rental income GLCA received during the course of the lease. The trial court placed the burden of production onto GLCA regarding the lease of the property, but GLCA was unable to provide any records because they were allegedly still in exclusive possession of the fired property management firm.  The trial court granted Kaider’s motion, finding that GLCA had provided no evidence of the lease of the property to a tenant, nor any evidence that they had collected rent from the alleged tenant. They also found that GLCA had breached its duty to exercise its right of possession in a reasonable manner and was liable for the reasonable income it could have made during the period of possession. GLCA appealed from this ruling.


Holding: Reversed and Remanded. The appellate court reversed this decision for three reasons: 1) there was no evidentiary support for the verdict; 2) the trial court erred in its assignment of the burden of production to the plaintiff; and 3) its assignment of a duty to exercise plaintiff’s right was beyond the scope of the proceeding.


First, the appellate court made clear that, except for the original judgment of possession, all other “facts” in the record are merely allegations. The trial court made its ruling absent any evidentiary hearing, which, according to the appellate court, it is required to hold on the owner’s motion to vacate the judgment. This is required because whether the default has been cured is a question of fact. “Absent an evidentiary hearing, there is no basis in the record for any of the trial court’s factual findings regarding the existence or nonexistence of the lease and any payments that the alleged tenant may or may not have made.” The court reversed based on this error alone, but went on to address the other two issues so as to avoid these problems in the future.


Regarding the trial court’s assignment of the burden of production, the court determined that though the governing statute is silent on the issue, it is analogous to sections 2-1203 and 2-1401 of the Code of Civil Procedure. It determined that, similar to proceedings taking place under these sections, under section 9-111, it is the party requesting relief from judgment that bears the burden of proving any necessary supporting facts.


Finally, on the issue of the plaintiff’s duty to exercise its right of possession reasonably, the court found that section 9-106 was controlling in limiting the scope of the proceedings. The court determined that the only purpose of a hearing on a motion to vacate the judgment of possession is to answer two factual questions: (1) whether “the default in the payment of the proportionate share of expenses has been cured,” and (2) whether the premises are currently leased to a tenant. The court advised that if defendant wished to pursue the claim that plaintiff is liable for its agent’s alleged negligence then, “he should test that claim in a collateral tort action, but he may not inject it into this particular proceeding.” On these grounds the court reversed and remanded for further hearing.


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By: ATG Underwriting Department | Posted on: Thu, 12/05/2013 - 12:13pm