3. A declaration amendment does not reach backward. The association amended its declaration to reclassify water charges as assessments months after recording the lien. The court: “The amendment did not retroactively turn the water charges that had already been incurred into assessments... This highlights the bad faith nature or gross overreach in placing the lien.”

4. No evidence of legal advice, no business judgment rule. Citing Palm v. 2800 Lake Shore Drive Condominium Ass'n, 2014 IL App (1st) 111290, ¶¶ 111-112, and Goldberg v. Astor Plaza, the court held directors must inform themselves of material facts, and that reliance on counsel earns the protection — but “the Association failed to present any evidence that its decision to place the lien on Du Bois's unit was the result of the advice of counsel.”

Holding 4 is the one with the widest application

The business judgment rule is the main defence available to an Illinois board sued over a discretionary decision, and boards treat it as automatic. It is not. Under Palm it is evidentiary: the board must be able to show it informed itself, and advice of counsel is the standard way of showing it.

Sherwood Commons presumably had counsel — someone drafted the lien. What it could not produce was evidence that the decision to record was the result of advice. That is a records problem as much as a judgment problem.

The practical fix is small: when the board takes a decision with legal exposure, the minutes should record that counsel was consulted and that the board acted on the advice received. Not the advice itself, which is privileged — the fact of it. A board that does this routinely has the Palm defence available; one that does not may find it has forfeited the defence it was counting on.

The three lien rules

Stated as operational instructions:

• Do not lien for fees a court declined to award. Section 9.2(b) follows a win.
• Do not lien for charges a court has already held are not assessments. Relitigating that by recording an instrument is what the court called gross overreach.
• Do not amend the declaration to fix a lien you have already recorded. It does not work, and the sequence is itself evidence of bad faith.

The counterweight, and the limits of this case

The court twice stressed the facts were “extremely unusual,” which limits its reach — and it is a Rule 23 order, so it cannot be cited as precedent except under Rule 23(e)(1).

It should also be read against Clarendon v. Klein, published this July, holding that an owner's indigency fee waiver does not shield them from a prevailing association's fees. The combined Illinois rule on Section 9.2(b) is symmetrical: win and you recover regardless of the owner's means; lose and you recover nothing and may not lien for the attempt.

What to watch next

No petition for leave to appeal was found. The remand on the association's counterclaims will determine what, if anything, the owner actually owed — which was never established in seven years of litigation.