After nearly seven years as Board President, Anthony G. Milazzo has finally left his mark on 111. Last week the Illinois Appellate Court published Boucher vs. 111 East Chestnut Condominium Association. It’s a landmark opinion. Under Milazzo’s direction and dogged determination, defendant 111 suffered a humiliating setback that’s significantly changed Illinois condo law, ironically benefiting millions of condo owners throughout the state. Yep… you read that right.
For a little perspective, more than a few real estate experts are already calling this decision “bigger that Palm.” In 2014 with Palm vs. 2800 Lake Shore Drive Condominium Association, Gary Palm changed the condo landscape in Illinois by mandating that board meetings and decision-making be transparent. That was huge!
But the Boucher Opinion takes an even more important leap forward. Boucher makes changes to the law necessary to safeguard the rights of the little guy whether it be the right of free speech at a meeting, the right of due process, or the right to confront your accusers. With the Boucher Opinion, the Appellate Court bolstered these distinctly American rights essentially nullifying the condo industry’s standard pretexts used by boards and their duplicitous lawyers to abuse power and abrogate homeowner rights.
Authored by Illinois Supreme Court Justice P. Scott Neville Jr., the 33-page Opinion is rich and comprehensive. Notable quotes include:
- The circuit court’s interpretation of section 18.4(h) (of the Illinois Condo Act) ensures that the section would not apply in the situations specified in the legislative history. Any private condominium association could forbid any political activity and any religious display in the condominium because the private condominium association would not count as a state actor. We must not interpret statutes in a manner that makes them meaningless. ¶ 18
- We must interpret statutes in light of the problems the legislature intended to address. We hold that section 18.4(h) “forbids a board from ‘impair[ing] any rights guaranteed by the First Amendment,’ not from violating the Amendment itself.” Under section 18.4(h), condominium boards must not adopt or enforce any rules that prohibit the free exercise of religion, abridge the freedom of speech, or abridge the right to peaceably assemble. ¶ 18
- The association may have violated the plaintiff’s (1st Amendment) rights, even if it never adopted any pertinent rule, regulation, or declaration. ¶ 20
- Defendants contend that despite the language of section 19 (of the Condo Act), the statute cannot require the production of minutes of the closed meeting… because the legislature must have intended such meetings to remain confidential. But the Act unambiguously mandates that the board must maintain minutes of all meetings, without exception, and grants members the right to inspect and copy those minutes. ¶ 27
- When the condominium rules include such a provision (that association employees have keys to units), the unit owners trust the association employees and the board members with unlimited access to the owners’ and residents’ homes, which the employees and board members can use without notice to the owners and residents. The high degree of trust the members must accord to the association imposes on the directors’ very strict fiduciary duties. ¶ 35
- A court may hold fiduciaries liable for failure to disclose information to their principals. ¶ 36
- Defendants rely on section 18.4(l) (of the Condo Act), which provides that the board has the power, “after notice and an opportunity to be heard, to levy reasonable fines for violation of the declaration, by-laws, and rules and regulations of the association.” The provision does not negate the provision in the same section that imposes fiduciary duties on all board members. ¶ 44
- The dissent would have the court override the fiduciary duty to disclose, to reward the defendants for treating plaintiff as an adversary even before he filed the lawsuit— while they maintained control over the expenditure of his funds for the building, while they retained authority to restrict his behavior in and around his home, and while they had unrestricted access to his home. ¶ 60
- When trustees find themselves in an adversarial posture with the cestuis qui trust, the trustees must leave the trust relationship. The fiduciary must not resort to adversarial posturing in the context of the fiduciary relationship. ¶ 60
- Board members have fiduciary duties of honesty and full disclosure to all residents and owners of the condominiums they manage—even if the residents or owners are consistently rude, arrogant, and obnoxious. ¶ 62
Of course, truth be known, Milazzo can’t take all the credit. He’s had the help of the board, Sudler Property Management, and especially the law firm Kovitz Shifrin Nesbit and its star litigator, Diane Silverberg.
Per Silverberg’s biography: “With over thirty years of litigation and appellate experience, she is able to evaluate the relative strengths and weaknesses of her clients’ cases thoroughly and efficiently, thereby helping them arrive at an early understanding of their legal options and likely outcomes, along with an estimated cost of representation through resolution.”
From that, one can only conclude that the hundreds of thousands of dollars spent in legal fees to date, was by design. Milazzo and the board worked very hard apparently to further condo-owner rights in Illinois and to claim 111’s permanent place in condominium law history. Right? Imagine: To position 111 as a defendant over a trumped-up $500 fine; and then to risk taking it all the way to the Illinois Appellate Court; and then somehow to seize a loss… well, ya just can’t make that up. More impressive still, there’s been no boasting about it coming from Milazzo or the board.
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EDITOR’S ENDNOTE: We’d be remiss here to not also recognize all those homeowners who have repeatedly voted for Milazzo, maintained their support, taken a hit in property values, and sponsored his legal adventures. They share in Milazzo’s accomplishment. 111 East Chestnut Condominiums will forever be known for it.
CITATION: Boucher v. 111 East Chestnut Condominium Association, Inc., 2018 IL App (1st) 162233
STORY UPDATE 7/5/18: Milazzo & Friends have responded. Apparently, the Association is now in the business of legislation through litigation: “If allowed to stand, the Boucher appellate decision significantly and detrimentally impacts all Illinois condo associations’ ability to self-govern and to restrict unwanted behaviors. Given that, the Board has decided to appeal this decision to the next Appellate Court level.”
Also, the term ‘grievance flipping’ seems to best describe the Board’s dishonest agenda: “Turning every grievance or complaint you have about them right back to you, thereby removing any negative focus on them. Whenever you voice what is troubling you, the passive, abusing narcissist will counterattack you with a criticism they have against you, or point out something wrong with you or something that you do that is irritating or annoying. The subject of your grievance against them never gets resolved because they point the finger right back at you and you suddenly end up on the defensive end of the discussion. This is a classic narcissistic abuser’s move.”
STORY UPDATE 4/18/19: Today, Milazzo stepping down as Board President and slid to the left. He accepted Vice President of the 111 Board.