Bogot v. Haverford Homeowners Ass'n

• Court: Appellate Court of Illinois
• Decided: May 22, 2026
• Docket: 1-25-0080
• Status: Published

Opinion

2026 IL App (1st) 250080

No. 1-25-0080

Opinion filed May 22, 2026

FIFTH DIVISION

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

SCOTT BOGOT and NANCY DOUGAN, on ) Appeal from the Behalf of Themselves and a Class of Similarly ) Circuit Court of Situated Persons, ) Cook County, ) Chancery Division. Plaintiffs-Appellants, ) ) No. 2023 L 001295 v. ) ) Honorable THE HAVERFORD HOMEOWNERS ) Michael T. Mullen, ASSOCIATION and HANK NOTHNAGEL, ) Judge, presiding. CHRISTOPHER SHAW, GLENN DAVIS, and ) GEORGE JAMESON, as Members of the HOA ) Board of Directors, ) ) Defendants-Appellees. )

PRESIDING JUSTICE MITCHELL delivered the judgment of the court, with opinion. Justice Oden Johnson and Justice Wilson concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs Scott Bogot and Nancy Dougan, on behalf of themselves and a class of similarly

situated persons, appeal the circuit court’s dismissal of their claims against defendants Haverford

Homeowners Association and Hank Nothnagel, Christopher Shaw, Glenn Davis, and George

Jameson as members of the Homeowners Association Board of Directors, that defendants’

assessments are unlawful and unconscionable and defendants breached their fiduciary duty by

misappropriating funds. Plaintiffs also appeal the circuit court’s judgment on the pleadings for No. 1-25-0080

defendants on plaintiffs’ claim that defendants’ organizational structure does not comply with the

law. At issue is (1) whether the circuit court erred in dismissing plaintiffs’ claim that defendants’

assessments are unlawful because the covenant for assessments does not run with the land; (2)

whether the circuit court erred in dismissing plaintiffs’ claim that the assessments are

unconscionable because they are one-sided against condominium owners and plaintiffs were

unfairly surprised by how defendants allocated assessments; (3) whether the circuit court erred in

dismissing plaintiffs’ breach of fiduciary duty claim because plaintiffs had standing to bring a

direct claim as individuals; and (4) whether the circuit court erred in entering judgment on the

pleadings for defendants because defendants’ structure does not comply with the statutory regime

for homeowners associations. For the following reasons, we affirm.

¶2 I. BACKGROUND

¶3 The facts alleged in the complaint are as follows. Plaintiffs Scott Bogot and Nancy Dougan

are condominium owners in a planned development in Glenview, Illinois, that consists of 50

detached homes, a condo building with 48 units, and community areas. Defendants Haverford

Homeowners Association and the directors manage the development. The Community Declaration

for Haverford was first recorded in 2005 and provided that defendants would be formed as a not-

for-profit corporation under the General Not For Profit Corporation Act of 1986 (805 ILCS

105/101.01 et seq. (West 2004)). The declaration states it is not intended that defendants shall be

a “master association” as defined in the Condominium Property Act (765 ILCS 605/18.5(a) (West

2004)) or a “common interest community association” as defined in the Code of Civil Procedure

(735 ILCS 5/9-102(a)(8) (West 2004)). In 2010, after the declaration was in effect, the Illinois

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General Assembly passed the Common Interest Community Association Act to regulate

homeowners associations. Pub. Act. 96-1400 (eff. July 29, 2010).

¶4 As part of defendants’ management of the development, defendants collect various

assessments. Defendants assess homeowners for expenses unique to the detached homes, such as

snow removal from private roads serving the homes. Additionally, defendants collect assessments

from both detached homeowners and condo owners for maintenance and landscaping of the

community area. Assessments for the community area are divided equally among all unit owners,

whether homeowners or condo owners, and all unit owners have the right to use and enjoy the

community area. Since there are 48 condos and 50 detached homes, the condo owners together

pay 49% of these assessments. Plaintiffs allege that 87% of this community area is land that

surrounds only the detached homes, which plaintiffs characterize as homeowner yards, while 13%

of the community area is the condo building’s backyard. A separate condo association collects

assessments from only the condo owners for maintenance of the front yard of the condo building.

¶5 In 2023, plaintiffs, on behalf of themselves and a class of similarly situated persons, filed

a complaint against defendants. In their first amended complaint, plaintiffs alleged that defendants

cannot collect assessments for the community area because the covenant for assessments does not

run with the land. Plaintiffs also alleged the assessments are unconscionable since condo owners

pay 49% of the assessments to maintain the community area even though 87% of the area is

functionally homeowners’ yards. Additionally, plaintiffs alleged that defendants breached their

fiduciary duty by misappropriating condo owners’ funds for homeowners’ expenses. Plaintiffs also

alleged that after the passage of the Common Interest Community Association Act in 2010,

defendants’ organizational structure does not comply with the law. Defendants moved to dismiss

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the complaint under section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 2022).

The circuit court dismissed plaintiffs’ claims related to the assessments with prejudice and

dismissed the breach of fiduciary duty claim without prejudice. The circuit court denied

defendants’ motion as to the Common Interest Community Association Act claim.

¶6 Plaintiffs filed a second amended complaint repleading the breach of fiduciary duty and

the Common Interest Community Association Act claims. Defendants moved to dismiss plaintiffs’

breach of fiduciary duty claim under section 2-619 of the Code of Civil Procedure (id. § 2-

619(a)(9)), and the circuit court dismissed the claim for lack of standing. Defendants filed an

answer to plaintiffs’ claim regarding the Common Interest Community Association Act, and the

parties filed cross-motions for judgment on the pleadings (id. § 2-615(e)). The circuit court entered

judgment on the pleadings for defendants. This timely appeal followed. Ill. S. Ct. R. 303 (eff. July

1, 2017).

¶7 II. ANALYSIS

¶8 A. Runs with the Land

¶9 Plaintiffs argue that the circuit court erred in dismissing their claim that defendants have

no legal right to collect assessments from condo owners for maintenance of the community area

because the covenant for assessments does not run with the land. Specifically, plaintiffs argue that

the covenant to pay assessments for the community area does not touch and concern the land since

the condo owners are unable to use and enjoy portions of the community area. Defendants contend

that the covenant does touch and concern the land, specifically the land’s landscaping and other

maintenance. Defendants further contend that plaintiffs have the right to use and enjoy all the

community area. We review the dismissal of a claim de novo. Cowper v. Nyberg, 2015 IL 117811,

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¶ 12.

¶ 10 A covenant is enforceable and binding on subsequent owners if it runs with the land.

Streams Sports Club, Ltd. v. Richmond, 99 Ill. 2d 182, 187-88 (1983). “[F]or a covenant to run

with the land three criteria must be satisfied: (1) the grantor and grantee must have intended that

the covenant run with the land; (2) the covenant must touch and concern the land; and (3) there

must be privity of estate between the party claiming the benefit of the covenant and the party

resting under its burden.” St. Paul Federal Bank for Savings v. Wesby, 149 Ill. App. 3d 1059, 1063

(1986) (citing Streams Sports Club, 99 Ill. 2d at 188). The parties dispute only whether the

covenant touches and concerns the land.

¶ 11 A covenant touches and concerns the land if it “affects the use, value, and enjoyment ***

of the property.” (Internal quotation marks omitted.) In re County Treasurer and ex Officio County

Collector, 373 Ill. App. 3d 679, 690 (2007). Generally, assessments “for repair of common areas

*** clearly further[ ] the use and enjoyment of the property.” St. Paul Federal Bank for Savings,

149 Ill. App. 3d at 1064.

¶ 12 The complaint alleges that “[u]nder the terms of the Declaration, each Condo Owner and

Homeowner is annually assessed an equal amount for the expenses to *** maintain, repair, and

replace landscaping of the common areas ***.” The covenant to pay assessments for the

community area is for the maintenance, repair, and landscaping of that common land, so it affects

the use and enjoyment of the land. Thus, taking the allegations as true, the covenant to pay

assessments for maintenance of the community area touches and concerns the land. See Vernon v.

Schuster, 179 Ill. 2d 338, 341 (1997) (“In determining whether to allow a motion to dismiss, a

court must take as true all well-pled allegations of fact contained in the complaint ***.”).

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¶ 13 Plaintiffs argue that the covenant does not touch and concern the land because they do not

actually use and enjoy portions of the community area adjacent to the homes which they describe

as “Homeowners’ yards.” They argue “one cannot use and enjoy another person’s yard” and no

“reasonable person [would] feel comfortable ‘using and enjoying’ a stranger’s yard.” However,

the touch and concern “requirement concerns the covenant’s relationship to the land.” (Emphasis

in original.) In re County Treasurer, 373 Ill. App. 3d at 690. In other words, the question is whether

the covenant affects the use, value, and enjoyment of the land, not whether plaintiffs in fact choose

to use the land. The covenant for assessments affects the use, value, and enjoyment of the

community land by requiring payment for the land’s upkeep. The declaration gives plaintiffs the

right to use and enjoy this land, whether or not they choose to exercise it. See Streams Sports Club,

99 Ill. 2d at 190 (“It does not matter that the facilities are not adjacent to each lot, it is sufficient

that they touch and concern the entire subdivision.” (quoting Four Seasons Homeowners

Association, Inc. v. Sellers, 62 N.C. App. 205, 210-11 (1983))).

¶ 14 Plaintiffs also argue that the assessments are excessive compared to the benefit to the condo

owners, so the covenant fails the touch and concern test under Streams Sports Club, 99 Ill. 2d at

188-90. Plaintiffs, however, rely on language that was not part of the court’s “touch and concern”

analysis. In that case, the court held that a covenant for assessments to pay for a recreational facility

adjacent to the condo building ran with the land “because the covenant clearly touches and

concerns the land.” Id. at 189-91. It noted that nearly every other jurisdiction agreed and addressed

the defendant’s attempt to distinguish authority from other jurisdictions:

“Defendant has attempted to distinguish such authority on the grounds that the associations that levy assessments for recreational facilities were nonprofit entities. Defendant has provided no authority indicating recreational facilities that earn a profit should be treated differently than nonprofit associations. Finally, defendant has not alleged that the

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assessments have been excessive or that the facilities have not been commensurate with the annual fees.” Id. at 189-90.

The court mentioned the excessiveness of the assessments in response to the argument that for-

profit entities should be distinguished from nonprofit entities. Id. Here, defendants are a not-for-

profit corporation, so the court’s discussion is immaterial anyway. The covenant to pay

assessments runs with the land, so the circuit court did not err in dismissing plaintiffs’ claim that

defendants’ assessments were unlawful.

¶ 15 B. Unconscionability

¶ 16 Plaintiffs argue that the circuit court erred in dismissing their claim that the declaration’s

allocation of assessments for maintenance of the community area is unconscionable. Plaintiffs

argue that the allocations are one-sided against the condo owners who pay 49% of the maintenance

for the community area even though 87% of the community area is functionally homeowner yards.

Additionally, plaintiffs argue that they were unfairly surprised by the declaration because they

lacked the specialized knowledge to recognize that the declaration’s allocation of assessments,

which is equal among all unit owners, varies from other associations who allocate assessments by

square footage. Defendants argue that the location of the community area is irrelevant because all

units have an equal right to use and enjoy the area. Further, defendants argue that the declaration’s

allocation of assessments is reasonable because it divides assessments equally among all units. We

review the dismissal of a claim de novo. Cowper, 2015 IL 117811, ¶ 12.

¶ 17 “Unconscionability takes two general forms; an agreement may be unenforceable if it is

either procedurally or substantively unconscionable.” Phoenix Insurance Co. v. Rosen, 242 Ill. 2d

48, 60 (2011). “Procedural unconscionability consists of some impropriety during the process of

forming the contract depriving a party of meaningful choice.” (Internal quotation marks omitted.)

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Id. Procedural unconscionability considers the circumstances surrounding the transaction

including “the disparity of bargaining power between the drafter of the contract and the party

claiming unconscionability.” Kinkel v. Cingular Wireless LLC, 223 Ill. 2d 1, 22-23 (2006). Other

relevant factors include “the manner in which the contract was entered into, whether each party

had a reasonable opportunity to understand the terms of the contract, and whether important terms

were hidden in a maze of fine print.” (Internal quotation marks omitted.) Id. at 23.

¶ 18 Substantive unconscionability, on the other hand, “concerns the actual terms of the contract

and examines the relative fairness of the obligations assumed.” (Internal quotation marks omitted.)

Id. at 28. “Indicative of substantive unconscionability are contract terms so one-sided as to oppress

or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed

by the bargain, and significant cost-price disparity.” (Internal quotation marks omitted.) Id.

¶ 19 Defendants first argue that plaintiffs waived their argument that the declaration is

procedurally unconscionable because they did not allege it in the first amended complaint at issue

here, nor in their reply to defendants’ motion to dismiss, so cannot resurrect it on appeal. However,

a “finding of unconscionability may be based on either procedural or substantive

unconscionability, or a combination of both.” Id. at 21. Even when the circumstances surrounding

the transaction are not severe enough to render a contract procedurally unconscionable on its own,

those factors should still be considered in combination with substantive unconscionability to

determine whether a contract is unconscionable. See id. at 27. Here, although the claim in

plaintiffs’ first amended complaint is labeled “The Declaration is Substantively Unconscionable,”

the section contains factual allegations that concern procedural unconscionability. As such, we

will consider all the allegations in plaintiffs’ complaint concerning unconscionability.

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¶ 20 Plaintiffs first allege that the “Condo Owners had no ability to negotiate the Declaration’s

terms and were forced to accept the Declaration when they purchased their Condo Units.” But

contracts of adhesion “are a fact of modern life” and are not, on their own, procedurally

unconscionable. Id. at 26; Phoenix Insurance Co., 242 Ill. 2d at 72-73. Next, plaintiffs allege that

the “Condo Owners did not possess the knowledge or sophisticated understanding of real estate

and community association law to recognize the unusual and highly inequitable manner in which

assessments were calculated under the Declaration.” However, the declaration is clear that

assessments “shall be equal to the Community Assessment, divided by the number of Dwelling

Units as shown on the Declarant’s Development Plan, so that each Owner shall pay equal

Community Assessments for each Dwelling Unit owned.” Additionally, although plaintiffs claim

this manner of division is unusual compared to how other associations divide their assessments

(by square footage), plaintiffs do not allege any circumstances surrounding the transaction that

prevented them from learning this before they purchased their condos.

¶ 21 Plaintiffs also allege that the HOA declaration itself is “oppressive, totally one-sided and

creates a significant cost-price disparity in favor of the Homeowners and to the detriment of the

Condo Owners” “due to the manner in which it calculates and apportions assessments.” However,

plaintiffs have not established that the declaration’s terms itself are so one-sided as to be

unconscionable, rather than just a bad deal. According to the complaint, condo owners pay an

assessment to their own condo association for 100% of the maintenance of the condo’s front yard

and additionally pay an assessment to defendants for maintenance of the community area for the

entire development. They allege the condo owners pay a disproportionate 49% share of the

maintenance when only 13% of the community area surrounds the condo building and requires

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less landscaping. They allege they pay significantly more in assessments than they would if the

community area assessments were allocated as other associations do, by square footage, and if the

community area included the condo’s front yard ($79,000 compared to $21,000). However, the

declaration is clear that each unit owner has an equal right to use and enjoy the community area.

By its terms, equal payment from each unit is not unconscionable. See Carl Sandburg Village

Condominium Ass’n No. 1 v. Carl Sandburg Village Condominium Homeowners’ Ass’n, 175 Ill.

App. 3d 1, 7 (1987) (“Since all residents are entitled to use of the facilities, it seems reasonable

that all residents, as represented by the HOA, should have the corollary responsibility to maintain

them.”). While this arrangement may be less favorable for plaintiffs than if they lived in a

development that allocated assessments by square footage, the fact that a better deal exists, or may

be common, does not make this arrangement so unconscionable as to be unenforceable. See Kinkel,

223 Ill. 2d at 28 (acknowledging that the commercial reasonableness of a contract’s terms can be

a factor for unconscionability in transactions between two commercial entities but noting that it is

of “limited usefulness” otherwise).

¶ 22 Plaintiffs also argue that the declaration is unconscionable because community association

members cannot be assessed for an expense from which they derive no benefit. However, none of

the three cases that plaintiffs cite for this proposition support this as a general contention. See

Ridenour v. Carl Sandburg Village No. 7 Condominium Ass’n, 402 Ill. App. 3d 532, 537 (2010);

Hofmeyer v. Willow Shores Condominium Ass’n, 309 Ill. App. 3d 380, 384 (1999); Sawko v.

Dominion Plaza One Condominium Ass’n No. 1-A, 218 Ill. App. 3d 521, 532 (1991). In all three

cases, the court considered the protections outlined in the associations’ own declarations on how

fees could be assessed. Ridenour, 402 Ill. App. 3d at 536-37 (explaining that the declaration

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designated some community areas as limited common elements and specified that only those who

benefited from them could be charged); Hofmeyer, 309 Ill. App. 3d at 382 (same); Sawko, 218 Ill.

App. 3d at 532 (explaining that the declaration outlined two categories of assessments, one paid

by percentage of ownership and the other paid equally among all units, and the association could

not vary from those formulas). Here, there is no allegation that defendants are assessing fees

contrary to the declaration. Even accepting plaintiffs’ contention that it would be per se

unconscionable to assess them for an expense they do not benefit from, plaintiffs do derive a

benefit because they have the right to use and enjoy the community area. Plaintiffs did not state a

claim for unconscionability, so the circuit court did not err in dismissing the claim.

¶ 23 C. Breach of Fiduciary Duty - Standing

¶ 24 Plaintiffs argue that the circuit court erred in dismissing their claim of breach of fiduciary

duty for lack of standing. Plaintiffs argue that they stated a direct claim against defendants because

they properly alleged a separate and distinct injury as condo owners. Defendants contend that

plaintiffs do not have standing since they sued in an individual capacity rather than bringing a

derivative claim. We review the circuit court’s dismissal of a claim for lack of standing de novo.

Glisson v. City of Marion, 188 Ill. 2d 211, 221 (1999).

¶ 25 In a derivative action, a shareholder brings an action “on behalf of a corporation to seek

relief for injuries done to that corporation.” Davis v. Dyson, 387 Ill. App. 3d 676, 682 (2008). In a

direct claim, on the other hand, a shareholder “who has a direct and personal interest in a cause of

action *** bring[s] suit in an individual capacity even if the corporation’s rights are also

implicated.” Id. at 689. Misappropriation of corporate funds is an injury incurred by the

corporation so must be brought in a derivative action, rather than as a direct claim by individuals.

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Borgsmiller v. Burroughs, 187 Ill. App. 3d 1, 7 (1989); see Poulet v. H.F.O., L.L.C., 353 Ill. App.

3d 82, 99-100 (2004) (explaining that individual unit owners lacked standing to bring individual

claims against their condo association for misuse of association funds).

¶ 26 Here, plaintiffs allege defendants breached their fiduciary duties by misusing common

assessments and common reserve funds to pay for homeowner expenses and to account for a deficit

in homeowner assessments. All of plaintiffs’ allegations concern misappropriation of the

association’s funds. As such, these claims must be brought in a derivative action. Since plaintiffs

sued as individuals and brought a direct claim rather than a derivative action, plaintiffs do not have

standing.

¶ 27 Plaintiffs argue that even though their claim is for misappropriation of the association’s

funds, they have standing to bring a direct claim since they suffered an injury that is separate and

distinct from the injury to the association. See Davis, 387 Ill. App. 3d at 690 (“[F]or a shareholder

to have standing to bring an individual claim, the shareholder must allege an injury that is separate

and distinct from that suffered by other shareholders ***.” (Internal quotation marks omitted.)).

Plaintiffs argue they have a separate and distinct injury as condo owners because the association’s

funds were misappropriated to the detriment of the condo owners and to the benefit of the

homeowners. Even so, this would not change the fact that the alleged misappropriated funds

belonged to the association, so the association suffered the injury. See Poulet, 353 Ill. App. 3d at

99-100 (“We further disagree with plaintiffs’ argument *** that the funds in the Association’s

account were not owned by the Association but, rather, were proportionately owned and

contributed by each individual unit owner, [and] conferred to [plaintiff] an individual interest

sufficient to provide him with the necessary standing to pursue those claims. *** [T]he collective

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character of the claims at issue here – both involving Association funds – show that the rights were

those only the Association had the authority to assert.”). Further, plaintiffs’ allegations that the

condo owners supplied the funds that were misappropriated are allegations of indirect harm based

on a primary wrong to the association. See Small v. Sussman, 306 Ill. App. 3d 639, 644 (1999)

(explaining that diversion or mismanagement of corporate assets represents a direct wrong to the

corporation and “would affect all shareholders only indirectly”). With allegations of only indirect

harm to plaintiffs, plaintiffs have no standing to sue individually. See Goldberg v. Michael, 328

Ill. App. 3d 593, 599 (2002). The circuit court did not err in dismissing plaintiffs’ breach of

fiduciary duty claim.

¶ 28 D. Common Interest Community Association Act

¶ 29 Plaintiffs argue that the circuit court erred in entering judgment on the pleadings for

defendants on plaintiffs’ claim that after the enactment of the Common Interest Community

Association Act (765 ILCS 160/1-1 et seq. (West 2022)), defendants are no longer organized in

compliance with the law. Plaintiffs argue that the Common Interest Community Association Act

prohibits associations that include both condos and detached homes unless they are organized as

master associations under the Condominium Property Act (765 ILCS 605/1 et seq. (West 2022)).

Plaintiffs argue that defendants are not a master association, so equitable principles mandate that

plaintiffs be severed from defendants. Defendants argue that they are not governed by the Common

Interest Community Association Act, the Act does not prohibit defendants from being organized

solely under the General Not For Profit Corporation Act of 1986 (805 ILCS 105/101.01 et seq.

(West 2022)), and the Common Interest Community Association Act does not require that condos

are separated from housing associations.

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¶ 30 The parties agree it was proper for the circuit court to rule on the pleadings but dispute the

correct judgment as a matter of law. See State Building Venture v. O’Donnell, 239 Ill. 2d 151, 157-

58 (2010) (“A trial court properly grants a judgment on the pleadings when the pleadings disclose

no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”). We

review the circuit court’s judgment on the pleadings de novo. H&M Commercial Driver Leasing,

Inc. v. Fox Valley Containers, Inc., 209 Ill. 2d 52, 57 (2004). Further, questions of statutory

interpretation are reviewed de novo. Accettura v. Vacationland, Inc., 2019 IL 124285, ¶ 11. “The

primary objective of our analysis is to ascertain and give effect to the legislative intent.” Id. The

most reliable indicator of legislative intent is the plain language of the statute. Id. Where a statute

is ambiguous, “a statute’s legislative history and debates are valuable construction aids.” (Internal

quotation marks omitted.) Krohe v. City of Bloomington, 204 Ill. 2d 392, 397-98 (2003).

¶ 31 In 1963, the Illinois General Assembly passed the Condominium Property Act to regulate

condominiums. 1963 Ill. Laws 1120 (§ 2.1). Under the Act, condominium associations administer

the property, 765 ILCS 605/18.3 (West 2022), which includes assessing condo owners for common

expenses, id. § 9(a). The Act explains that when another nonprofit corporation or association

exercises power on behalf of one or more condominiums, or for the benefit of condo owners, that

corporation or association is considered a master association:

“If the declaration, other condominium instrument, or other duly recorded covenants provide that any of the powers of the unit owners associations are to be exercised by or may be delegated to a nonprofit corporation or unincorporated association that exercises those or other powers on behalf of one or more condominiums, or for the benefit of the unit owners of one or more condominiums, such corporation or association shall be a master association.” Id. § 18.5(a).

Master associations are regulated by the Condominium Property Act. Id. § 18.5.

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¶ 32 In 2010, the Illinois General Assembly passed the Common Interest Community

Association Act (Pub. Act. 96-1400 (eff. July 29, 2010)) to “afford[ ] similar protections to owners

of single-family, townhome, villa, or other properties in common interest communities that are

currently afforded to condominium property owners.” 96th Ill. Gen. Assem., Senate Proceedings,

March 17, 2010, at 53 (statements of Senator Wilhelmi). The Act applies “to all common interest

community associations in this State.” 765 ILCS 160/1-10. “Common interest community” is

defined as “real estate other than a condominium or cooperative with respect to which any person

by virtue of his or her ownership of a partial interest or a unit therein is obligated to pay for the

maintenance, improvement, insurance premiums or real estate taxes of common areas described

in a declaration which is administered by an association.” Id. § 1-5. Further, a “ ‘common interest

community’ may include, but not be limited to, an attached or detached townhome, villa, or single-

family home.” Id. However, “[a] ‘common interest community’ does not include a master

association.” Id.

¶ 33 Before ruling on the cross-motions for judgment on the pleadings, the circuit court

suggested that the parties submit certified questions to this court on the various statutory

interpretation issues (Ill. S. Ct. R. 308 (eff. Oct. 1, 2019)):

“Before I hear any argument, and I will hear argument on the case, it seems to me based on the parties’ position, based upon the interpretation of the relevant statutes that it may be helpful if the parties consider requesting certification of one, if not three separate issues that would be certified for review pursuant to Rule 308.

So the idea of a 308 certification, which I would welcome, is to obtain clarification of certain issues. *** [O]ne question would be if a homeowners association was founded prior to CICA – C-I-C-A, that’s an acronym, would it be subject to the provisions of CICA. Some question similar to that might be helpful.

Second, is CICA applicable to homeowners associations that were formed under the Illinois Not-for-Profit Act prior to CICA coming into existence. Third, does CICA

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require conversion to a common-interest community association or pre-existing associations that failed to fully comply with the provisions of the act.”

The parties informed the circuit court that they did not want to certify the questions to this court

and, instead, asked the circuit court to rule. The circuit court entered judgment on the pleadings

for defendants explaining that, under its interpretation, the Common Interest Community

Association Act did not require the condos to be separated from defendants’ housing organization:

“So the question is: Do CICAA’s provisions apply to associations that contain both condominiums and detached homes whose declaration was created and filed prior to CICAA’s enactment? Separately, can a property that contains both condominium buildings and detached housing be considered a community interest community under CICAA? I have reviewed the case law that has been cited to the parties and we have had a discussion about this. And this may well be an issue of first impression. But, nonetheless, my conclusions after a careful review of the legislation as well as the legislative history is as follows: CICAA does not prohibit Haverford’s structure as an association organized under the Not For Profit Act. Further, CICAA does not require a separation of the condominiums from the housing organization. *** Judgment is entered on the defendants’ motion for judgment on the pleadings as it pertains to count one.”

¶ 34 We agree with the circuit court that the Common Interest Community Association Act does

not require condos to be separated from organizations that contain both condos and homes. The

Common Interest Community Association Act was intended to apply to all homeowners

associations not already regulated by the Condominium Property Act, either as a condo or master

association. See 96th Ill. Gen. Assem., House Proceedings, May 6, 2010, at 78 (statements of

Representative Schmitz) (“Senate Bill 3180 puts in the statute the Common Interest Community

Homeowners Association Act, which will basically allow homeowners associations that we have

in the smaller subdivisions and townhome communities, somewhat in line with the condo owners

that they have today.”); 765 ILCS 160/1-5 (“ ‘Common interest community’ means real estate

other than a condominium ***. *** A ‘common interest community’ does not include a master

association.”). Further, the Act gave all associations time to come into compliance after its passage,

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indicating the Act was intended to apply to all existing homeowners associations not covered by

the Condominium Property Act. See id. § 1-80 (“A common interest community association shall

be in full compliance with the provisions of this Act no later than January 1, 2012.”).

¶ 35 Thus, the Common Interest Community Association Act was intended to create a

comprehensive regulatory scheme, in combination with the Condominium Property Act, that

applies to all homeowners associations. Under this statutory scheme, an association is either a

condo or master association governed by the Condominium Property Act and excluded from the

Common Interest Community Association Act, or the association is neither a condominium nor a

master association and is governed by the Common Interest Community Association Act (unless

it is exempted as a small community, id. § 1-75). Whether an association is governed by the

Condominium Property Act or the Common Interest Community Association Act, the association

can choose to incorporate as an Illinois not-for-profit corporation. 765 ILCS 605/18.1(a) (“The

owner or owners of the property, or the board of managers, may cause to be incorporated a not-

for-profit corporation under the General Not For Profit Corporation Act of the State of Illinois for

the purpose of facilitating the administration and operation of the property.”); 765 ILCS 160/1-5

(“ ‘Board of directors’ means, for a common interest community that has been incorporated as an

Illinois not-for-profit corporation, the group of people elected by the members of a common

interest community as the governing body ***. ‘Board of managers’ means, for a common interest

community that is an unincorporated association or organized as a limited liability company, the

group of people elected by the members of a common interest community as the governing body

***.”). An association’s status as a not-for-profit corporation does not exclude them from either

statute. Rather, it is contemplated by both.

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¶ 36 Nothing in the statutory scheme suggests condos and homes cannot be managed by the

same association. Rather, these associations are master associations which exercise power for the

benefit of condo owners, in addition to managing homes, and are governed by the Condominium

Property Act. 765 ILCS 605/18.5(a) (“If the *** duly recorded covenants provide that any of the

powers of the [condo] associations are to be exercised by or may be delegated to a nonprofit

corporation or unincorporated association that exercises those or other powers on behalf of one or

more condominiums, or for the benefit of the unit owners of one or more condominiums, such

corporation or association shall be a master association.”). Here, the declaration provides that

defendants assess condo owners for maintenance of the community area, including the backyard

of the condo building, to the benefit of the condo owners. This falls under the plain language of

“master association” under the Condominium Property Act (id. § 18.5(a)).

¶ 37 Plaintiffs argue that because defendants are not organized as a master association, the

condo owners must be severed from defendants’ organization so that the organization can fall

under the Common Interest Community Association Act. Plaintiffs rely on the declaration which

states “[n]othing in this Community Declaration shall be construed as delegating to the Community

Association, or authorizing the Community Association to exercise, any rights or powers on behalf

of any such condominium association” and it “is not intended that the Community Association

shall be a ‘master association.’ ” But the declaration’s own characterization that defendants are not

a master association is immaterial. See id. § 4.1(b) (“[T]he declaration prevails except to the extent

the declaration is inconsistent with this [Condominium Property] Act.”); Enterprise Leasing Co.

of St. Louis v. Hardin, 2011 IL App (5th) 100201, ¶ 22 (“We must interpret a contract to be

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consistent with the law and public policy of this state.”). Thus, defendants are a master association

and fall under the Condominium Property Act.

¶ 38 The circuit court did not err in concluding that the condos need not be severed from

defendants’ organization. Therefore, the circuit court did not err in entering judgment on the

pleadings for defendants.

¶ 39 III. CONCLUSION

¶ 40 The judgment of the circuit court of Cook County is affirmed.

¶ 41 Affirmed.

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Bogot v. Haverford Homeowners Association, 2026 IL App (1st) 250080

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2023 L 001295; the Hon. Michael T. Mullen, Judge, presiding.

Attorneys Stephen J. Coukos, of Coukos Law, for appellants. for Appellants:

Attorneys Rebecca M. Rothmann and Abigail K. Dibadj, of Wilson Elser for Moskowitz Edelman & Dicker LLP, for appellees. Appellees:

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