Q. Unpaid unit owner assessments have become an issue for our association. We have instituted an aggressive collection policy as suggested in your column, and have had to start the eviction process against delinquent owners. Our attorney uses terms like “personal judgment” and “in rem” judgment. What is the difference?
A. There are two types of judgments that can be obtained in an eviction lawsuit. The first is a “personal judgment” against the unit owner. In order to obtain a personal judgment against the unit owner, the complaint and court summons must be physically served on the unit owner by the sheriff or a special process server. A personal judgment allows the association to obtain possession of a unit, rent the unit and apply the rent received from leasing the unit to amounts owed by the owner.
Importantly, a personal judgment also allows the association to collect from the unit owner, and not just the unit. This would permit the association to garnish wages or bank accounts of the owner, for example. A personal judgment is valuable if the association’s possession of a unit is terminated before all money due to the association is collected. This can happen when a unit that is in foreclosure by the owner’s lender is sold at the judicial sale. The judicial sale terminates the association’s right of possession of the unit. The association could still take action to collect the personal judgment from the owner.
The second type of judgment is an “in rem” judgment. An in rem judgment allows the association to obtain possession of a unit, rent the unit, and apply the rent received from leasing the unit to amounts owed by the owner, just like a personal judgment. However, an in rem judgment does not permit the association to collect money from the unit owner.
In an in rem case, an owner is served by what is known as “posting,” whereby the complaint and summons are posted at the courthouse. An in rem judgment is often sought when an owner cannot be personally served because his whereabouts is unknown, or he is otherwise difficult to find and serve.
If an association obtains an in rem judgment, and if a judicial sale “cuts off” the association’s right of possession and there is still money unpaid, the association could not pursue the unpaid balance from the unit owner with that judgment.
While a personal judgment against an owner is favored, an in rem judgment can be as effective in collecting money owed if the association’s right of possession of a unit isn’t cut off by a judicial sale in a foreclosure.
Q. The declaration of condominium for our association describes certain portions of the property as limited common elements. The declaration also provides that the association is responsible for maintenance, repair and replacement of the limited common elements, and that the association can charge the cost to the owner of the unit served by the limited common element. The windows of our building need to be replaced, yet the declaration does not refer to the windows. Are the windows limited common elements?
A. The Condominium Property Act provides an answer here. Except to the extent otherwise provided by the declaration, any shutters, awnings, window boxes, doorsteps, porches, balconies, patios, perimeter doors, windows in perimeter walls, and any other apparatus designed to serve a single unit are deemed a limited common element appertaining to that unit exclusively.
Since the declaration for your association is silent about windows, the windows serving a unit are limited common elements. Based on the language in your declaration, the association would be responsible to replace the windows, and the cost could be charged back to the owner of the unit served by the window.
Q. Many of the units in our association are leased, so we have many owners who live off site. Unfortunately, these owners don’t always provide us with their off-site address. We need to issue notices from time to time to these owners, for example, when there is a rules violation or about assessments. Where are we required to send these notices to these owners?
A. The typical provision of an association’s declaration says something to the effect that all notices are to be sent to an owner at the unit, unless the owner has designated another address, in writing, where notices are to be sent. If an owner has not designated another address, the association should issue all notices to the address of the unit in the association.
Ÿ David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.Copyright © 2013 Paddock Publications, Inc. All rights reserved.