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As discussed in a prior Insight, in November 2022, the Illinois Supreme Court spoke on section 22.1 of the Illinois Condominium Act (765 ILCS 605/22.1), holding that it did not provide condo sellers with a private right of action against their associations' boards or property managers related to allegedly excessive fees for the production of documents mandated under that section. See, Channon v. Westward Management, Inc., 2022 IL 128040.
In Channon (and numerous similar cases around the state), the plaintiffs sought class certification of their claims about those purportedly excessive fees.
Now, less than three years later, the Illinois Supreme Court will once again address section 22.1, having granted appellant's petition for leave to appeal in Deborah Greenswag, etc., v. Lieberman Management Services, Inc., (No.: 1-24-0289) on September 24, 2025.
Background
In Channon, the Supreme Court reversed the lower courts and held that section 22.1, which mandates condo sellers produce certain documents to prospective buyers and that boards or their property managers be reimbursed for their reasonable "direct out-of-pocket" costs for doing so, did not contain an implied private right of action to sellers who felt the "direct out-of-pocket" costs were inflated.
After Channon, the Illinois General Assembly amended section 22.1, eliminating the ambiguity created by the prior version's use of "[a] reasonable fee covering the direct out-of-pocket expenses..." for providing section 22.1 disclosure documents.
Effective January 1, 2023, section 22.1 states "[a] reasonable fee, not to exceed $375, covering direct out-of-pocket costs..." (765 ILCS 605/22.1) (emphasis added). The amendment also provided that an additional $100 for "rush service" constituted a "reasonable fee."
After Channon, class-action plaintiffs abandoned their section 22.1 claims, but moved forward with claims alleging that the purportedly unreasonable fees violated the Illinois Consumer Fraud and Deceptive Practices Act.
The Dismissal and Appeal of the Greenswag Case
In Greenswag, after section 22.1 was amended, the defendant moved to the trial court to reconsider its prior denial of its motion to dismiss the consumer fraud claim. The defendant argued that the amendment was retroactive, and since the defendant's fees were less than the $475 that the General Assembly proscribed as reasonable, dismissal was warranted.
The trial court granted the motion to reconsider, explaining that because the prior version of section 22.1 was ambiguous as to what constituted a "reasonable fee," the court could properly consider the amendment, which "simply clarifies that a reasonable fee is less than $375 plus $100 for any rush services." (Cir. Ct. Cook County, Case No.: 16CH15920) (Jan. 26, 2024). Because the consumer fraud claim was predicated on the Condo Act, and because the Condo Act (as amended) expressly permitted the amount of fees that were charged, dismissal of that case was proper.
The First District agreed that dismissal was proper, noting in dicta that the amendment was a relevant consideration. Greenswag v. Lieberman Mgmt. Servs., Inc., 2025 IL App (1st) 240289-U, ¶30.
But, the First District primarily relied on Channon in affirming. The court explained that when plaintiffs use a statutory enactment for a tort action seeking damages, they must demonstrate that a private right of action is either expressly granted or implied in that statute. Id. at ¶28. Because Channon held that section 22.1 contained neither an express nor an implied private right of action for condo sellers, the Greenswag dismissal was affirmed.
The Greenswag Case Before the Supreme Court
The First District affirming the dismissal of Greenswag led to other such cases being stayed at the trial court level. Now – for the second time in three years – the Supreme Court will speak on section 22.1.
While both lower courts in Greenswag stated that the amendment to section 22.1 was a relevant consideration, neither expressly held that the amendment to section 22.1 was retroactive. Whether the Supreme Court will agree with the trial or intermediate courts' reasoning, or whether it will go a step further and hold the amendment is retroactive, or reverse the lower courts altogether, remains to be seen.
Whatever the result, both plaintiffs' attorneys and defense counsel will be tuned in to the Supreme Court's second impactful decision about section 22.1 in a short timeframe.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
