An Illinois court fee waiver does not shield an owner from the association's attorney fees
An Illinois court fee waiver does not shield an owner from the association's attorney fees
2026-09-10 · Illinois · Courts
What happened. On July 17, 2026 the Illinois Appellate Court, First District, Fifth Division, issued 4310-4322 N. Clarendon Condominium Ass'n v. Klein, 2026 IL App (1st) 252082 — a published, precedential opinion.1
The question was new and the answer is clean: does a circuit-court indigency fee waiver under 735 ILCS 5/5-105 protect a unit owner from an award of the association's attorney fees under Section 9.2(b) of the Condominium Property Act and the declaration?
No.
The reasoning
The fee-waiver provision of the Code of Civil Procedure reaches only fees and costs the court would charge the litigant. It does not extend to fees awarded to an opposing party.
The court addressed the obvious policy objection directly — that it is absurd to waive a $250 appearance fee and then impose $25,000 in fees — and rejected it: “There is nothing in the language or history or purpose of that provision that suggests it is to be extended to insulate indigent litigants from liability that they could have to an opposing party.”
Main, 2020 IL App (2d) 200131, which concerned transcript costs, was distinguished.
The underlying case
The association sued Klein for nuisance and multiple declaration violations, won summary judgment, and was awarded $23,375.50 in fees plus $521.73 in costs under 765 ILCS 605/9.2(b) and the declaration — a judgment of $23,897.23.
What this settles for associations
An association pursuing covenant or nuisance enforcement need not treat an owner's fee waiver as a bar to recovering its fees. That is genuinely new, it is published, and it removes an argument that had been raised without a clear answer.
It matters most in the cases where it is most likely to arise: enforcement actions against owners in financial distress, which is a large share of the nuisance and violation docket. Before Klein, an association weighing whether to bring such an action had to price in the possibility that a fee award would be unavailable. It no longer does.
What it means for owners, said plainly
An indigent owner defending an enforcement suit carries real fee exposure, and should be told so before deciding to litigate rather than cure the violation.
The arithmetic in this case is worth stating: the association's fee award was $23,375.50. That is the cost of losing a covenant dispute, and it is owed by a person the court had already found could not afford the filing fee.
This is not a criticism of the holding, which follows from the statute's text. It is a description of what the rule does, and owners are served only by an accurate one.
The pattern across this year's Illinois fee decisions
Fee discipline cut both ways in 2025-2026, and the two directions are worth reading together.
Against owners: Klein (a fee waiver is no shield), and Corinthian Condominium Ass'n v. Rao, where a jury awarded $2,223.69 in assessments and the court awarded $30,853 in fees.
Against associations: Du Bois v. Sherwood Commons, holding that fees “incurred in litigation[] in which the court determined the Association failed to prove a default or failure to pay assessments” are not recoverable under 765 ILCS 605/9.2(b) and cannot ground a lien.
Read together the rule is coherent: Section 9.2(b) fees follow a win, and only a win. An association that prevails recovers regardless of the owner's means; an association that does not prevail recovers nothing and may not lien for the attempt.
What a board can do
Nothing changes procedurally, but the litigation calculus does. Where an owner has obtained a fee waiver, that fact is no longer a reason to settle a meritorious enforcement action cheaply — and it is also not a reason to press one that is weak, because Du Bois is waiting at the other end.
What to watch next
The decision is recent and a petition-for-leave-to-appeal window may still be open; no PLA appears in the Supreme Court's dispositions through September 9, 2026. The association was represented by Kovitz Shifrin Nesbit.
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