Unlike in a co-op, wherein residents own shares in a corporation entitling them to occupy their apartment – and in which the co-op board is pretty much the final authority over how the community is run – condos and HOAs are considered ‘real property,’ more like freestanding homes. Therefore, ‘evicting’ a condo owner from a unit and effectively wiping out his or her equity position as a member of the condominium association is a difficult undertaking, subject to very narrow legal interpretation.
Points of law on this subject are consistent from state to state, with only slight variations. The important distinctions relate to whether the person being removed is the owner of the unit in question, or the owner’s rental tenant. In both cases, laws are consistent on the most basic matters. Some states’ statutes have slightly differing approaches and nuances that we will explore later in this article.
Removing a Condo Owner
While a co-op shareholder could theoretically be evicted from his or her unit for issues not having to do with money (examples include constant frivolous litigation and an ongoing pattern of harassment toward neighbors), the same is virtually impossible in a condo setting. As mentioned above, condominiums are pure real estate – not shares in a corporate entity. As a matter of fact, from a legal standpoint, the word eviction really shouldn’t be used in the context of removing a condo owner, though it can be applied to removing a tenant from a condominium unit—a point we will return to later. The closest we can come to a legally recognizable term for this type of action in a condo or HOA is removal of an owner.
Michael Kim, Principal of the law firm Michael C. Kim & Associates in Chicago, explains that unlike any other state in the nation, Illinois law does in fact provide for the eviction of condominium owners. “In Illinois, we have a unique remedy for eviction and collection of unpaid monetary obligations,” he says. “It is primarily for uncollected monthly assessments, but could also include fines and charges of other kinds that the owner has failed to pay. In most jurisdictions, you cannot get someone out with an eviction case. You have to go through a lien foreclosure. In Illinois, we do have that remedy as well, but we use it sparingly.”
Kim goes on to explain that the eviction does not transfer title for the property; it merely transfers possession. The statute was challenged in court many years ago, but was upheld and found to be constitutional. It’s similar to a landlord-tenant eviction remedy, but has distinct procedures. When an owner is evicted under the statute, there is a 60-day stay issued during which the owner can cure the offense by bringing his or her accounts current. If the owner is willing and able to do that, then the eviction order is vacated. If not, the owner is evicted from the premises. This procedure can be used to collect unpaid fines as well. Once the condominium association has taken the unit, the association can lease the unit out and collect rent from it. If the unit is already leased out and the tenant is desirable, the association can choose to let the tenant remain and take an assignment of the rent it is paying.