A Statutorily Required Condominium Disclosure Fee Is Not an Unfair Consumer Practice Based on Price and Statutory Compulsion Alone

Introduction

In Greenswag v. Lieberman Management Services, Inc., the Supreme Court of Illinois considered whether a condominium property manager’s allegedly excessive fee for statutorily required resale-disclosure documents could constitute an unfair practice under the Consumer Fraud and Deceptive Business Practices Act.

Franklin P. Friedman sought to sell a condominium unit governed by the Mission Hills Condominium Association. Lieberman Management Services, Inc., the association’s management company, charged Friedman $470 to prepare and deliver documents required by section 22.1 of the Condominium Property Act. Friedman alleged that the charge was unreasonable because the documents were already maintained electronically, had been prepared in the ordinary course of business, and had effectively been paid for through association assessments. He also characterized condominium sellers as a captive group with no alternative source for the documents.

After Friedman’s death, Deborah Greenswag, successor trustee of the Franklin P. Friedman Living Trust, was substituted as plaintiff. The only claim before the supreme court was count II of the second amended complaint, alleging an unfair business practice under the Consumer Fraud Act.

Summary of the Opinion

The court unanimously affirmed the dismissal of the Consumer Fraud Act claim under section 2-615 of the Code of Civil Procedure. Justice Tailor did not participate.

The court held that:

• An allegedly high price, even an unconscionably high one, ordinarily does not by itself establish an unfair practice under the Consumer Fraud Act.
• The public policy underlying section 22.1 of the Condominium Property Act primarily protects prospective condominium purchasers, not sellers.
• Any lack of choice experienced by sellers resulted from the statutory disclosure system, not from Lieberman’s business conduct.
• Lieberman timely delivered the required documents, allowing the sale to proceed, and the alleged overcharge was not the kind of substantial injury sufficient on these facts to establish consumer unfairness.
• The 2023 statutory amendment authorizing charges of up to $375, plus $100 for qualifying rush service, undermined the plaintiff’s theories that the services had only minimal value or had already been paid for through association fees.

The court expressly declined to decide whether the 2023 amendment merely clarified the former “reasonable fee” language. Its decision therefore did not depend on applying the later $475 maximum retroactively to the 2016 transaction.

Procedural Context and Standard of Review

A section 2-615 motion tests the legal sufficiency of the complaint rather than the truth of its factual allegations. Under Marshall v. Burger King Corp. and Berry v. City of Chicago, the pleaded facts must be accepted as true and construed in the plaintiff’s favor, but those facts must still state a legally recognized cause of action. Review is de novo under Bueker v. Madison County.

Accordingly, the supreme court accepted for pleading purposes that Lieberman charged Friedman $470 for the disclosure documents. The question was whether the alleged facts, even if true, satisfied the legal requirements for an unfair-practices claim.

Analysis

1. Relationship Between the Condominium Property Act and the Consumer Fraud Act

At the time of the transaction, section 22.1 required a condominium seller to make specified information available to a prospective buyer. The association’s principal or designated officer was required to furnish the information within 30 days, and the association or board could charge the seller a “reasonable fee” covering direct out-of-pocket costs.

Effective January 1, 2023, the legislature amended the provision to establish a maximum fee of $375 and to permit an additional $100 for rush service completed within 72 hours. It also reduced the ordinary production period from 30 days to 10 days.

Greenswag did not allege deception, fraud, concealment, or misrepresentation. Her claim therefore depended entirely on whether Lieberman’s fee constituted an unfair practice.

2. The Consumer-Unfairness Test

Applying Robinson v. Toyota Motor Credit Corp., the court examined:

1. whether the practice offended public policy;
2. whether it was immoral, unethical, oppressive, or unscrupulous; and
3. whether it caused substantial consumer injury.

All three factors need not be independently satisfied. As explained through Cheshire Mortgage Service, Inc. v. Montes, a particularly strong showing under one factor, or a combined showing under all three, may establish unfairness. The supreme court noted that the appellate court had erred by failing to conduct its analysis under this framework, but the error did not change the result.

3. No Violation of the Relevant Public Policy

The court relied heavily on Channon v. Westward Management, Inc., which had already held that section 22.1 does not imply a private right of action for condominium sellers against management companies accused of charging excessive disclosure fees.

Channon determined that section 22.1 primarily protects prospective buyers by ensuring access to information important to a purchasing decision. The seller receives a limited incidental benefit from the reasonable-fee provision, but the statute principally imposes a disclosure duty on the seller.

In the present case, that public policy was fulfilled: the prospective buyer received the required information, and the transaction closed. The alleged overcharge to the seller therefore did not defeat the statute’s principal buyer-protection purpose.

Importantly, the court did not hold that the absence of an implied remedy under the Condominium Property Act automatically foreclosed every Consumer Fraud Act claim. It separately evaluated the alleged conduct under the Consumer Fraud Act’s unfairness test and found the allegations deficient.

4. Statutory Compulsion Is Not Defendant-Created Oppression

Greenswag argued that condominium sellers were captive consumers because they were legally required to obtain the documents from the association or its designated representative. The court distinguished a lack of choice created by legislation from coercion created by a defendant’s commercial conduct.

Section 22.1 itself determines who must furnish the documents. Lieberman did not create that exclusive arrangement. Thus, even if Friedman had no meaningful alternative source, the constraint arose from the statutory framework rather than from an oppressive business practice devised by Lieberman.

The court contrasted this situation with cases involving strong-arm collection tactics, threatened forfeiture of accumulated benefits, or other conduct through which a business itself exploited its superior position.

5. High Price Alone Was Insufficient

Under Robinson v. Toyota Motor Credit Corp. and Saunders v. Michigan Avenue National Bank, charging a high or even unconscionably high price generally does not, standing alone, establish statutory unfairness.

An excessive price may support liability when combined with additional misconduct—for example, charging for services not provided, using intimidation, or demanding a grossly disproportionate fee for little or no service. Here, however, Lieberman delivered the documents on time, and the condominium sale proceeded without disruption.

The court therefore found no substantial consumer injury beyond the assertion that the service cost too much. On the pleaded facts, that price-based injury was not one the Consumer Fraud Act was designed to remedy.

6. Significance of the 2023 Amendment

The circuit and appellate courts treated the amendment as clarifying that a reasonable charge could reach $475 when rush service was included. The supreme court took a narrower approach and did not decide whether the amendment was clarifying, substantive, or applicable to the earlier transaction.

It nevertheless found the amendment relevant to two theories advanced by Greenswag. By expressly permitting separate charges for preparing and delivering the information, the legislature implicitly rejected the propositions that:

• the service necessarily had only minimal value because the records were electronically available; and
• association assessments necessarily constituted full prior payment for document production and delivery.

As Horist v. Sudler & Co. observed, the convenience of maintaining documents in a form that permits prompt production carries a cost.

Precedents Cited

Channon v. Westward Management, Inc.

This was the central precedent. It held that section 22.1 does not imply a private cause of action for sellers challenging disclosure-document fees. It also established that the statute’s primary beneficiaries are prospective buyers and that any benefit to sellers from the reasonable-fee limitation is incidental.

Metzger v. DaRosa and Fisher v. Lexington Health Care, Inc.

These cases supply the four-part test for determining whether a statute implies a private right of action: the plaintiff must belong to the protected class, the injury must be one the statute was intended to prevent, a private remedy must be consistent with the statutory purpose, and the remedy must be necessary to provide adequate enforcement. Channon relied on the first factor to reject a seller’s implied action.

Robinson v. Toyota Motor Credit Corp.

Robinson provided the controlling three-factor unfairness test and the proposition that a high price alone ordinarily does not establish an unfair business practice.

Cheshire Mortgage Service, Inc. v. Montes

This authority explains that the three unfairness factors operate flexibly: a strong showing under one factor or a lesser showing under all three may suffice.

People v. Buffer and Newman v. Metropolitan Life Insurance Co.

These decisions support the principle that Illinois public policy is primarily established by the General Assembly and is commonly reflected in statutes and administrative regulations.

Tudor v. Jewel Food Stores, Inc. and Saika v. Ocwen Loan Servicing, LLC

These cases explain oppression as conduct leaving a consumer with little practical alternative but to submit, such as choosing between an increased payment and the loss of an existing benefit.

Batson v. Live Nation Entertainment, Inc., Ekl v. Knecht, and Newman v. Metropolitan Life Insurance Co.

These authorities demonstrate that actionable oppression must arise from the defendant’s conduct. Examples include strong-arm collection methods and forcing consumers to accept higher premiums or forfeit substantial sunk costs. Lieberman’s conduct did not create the statutory requirement that sellers obtain the documents from the association.

Saunders v. Michigan Avenue National Bank

Saunders reinforced the rule that even an unconscionably high price, without additional unfair conduct, is generally insufficient under the Consumer Fraud Act.

People ex rel. Fahner v. Hedrich and People ex rel. Hartigan v. Knecht Services, Inc.

These cases illustrate when excessive prices may become actionable: where a business repeatedly charges grossly disproportionate amounts for little or no service, bills for services not performed, or uses intimidation and superior bargaining power to collect payment.

Galvan v. Northwestern Memorial Hospital

Galvan illustrates the converse proposition. A high-price unfairness claim is weakened when the consumer actually receives substantial goods or services.

Horist v. Sudler & Co.

This decision supported the conclusion that maintaining information in an organized, readily accessible form has economic value even if producing it later requires relatively little additional effort.

Marshall v. Burger King Corp., Berry v. City of Chicago, and Bueker v. Madison County

These cases established the procedural framework for reviewing a section 2-615 dismissal: factual allegations are accepted as true, legal sufficiency is the decisive issue, and review is de novo.

Complex Concepts Simplified

Section 2-615 dismissal

The court assumes the properly pleaded facts are true but asks whether those facts amount to a legally valid claim.

Implied private right of action

A court-created right allowing an individual to sue under a statute that does not expressly authorize private lawsuits.

Unfair business practice

Conduct that violates established public policy, is oppressive or unscrupulous, or causes substantial consumer injury. A disappointing or expensive transaction is not automatically unfair.

Statutory compulsion

A lack of choice created by legislation. Here, the statute determined where sellers had to obtain the documents; Lieberman did not independently create that restriction.

Direct out-of-pocket cost

The actual expense associated with compiling, producing, copying, and delivering the required information, as distinct from unrelated overhead or profit.

Clarifying amendment

An amendment said to explain what an earlier statute already meant. The court did not decide whether the 2023 fee cap was clarifying or instead created a new rule.

Impact

The opinion narrows the circumstances in which condominium sellers may transform a disclosure-fee dispute into a Consumer Fraud Act claim. Future plaintiffs must allege more than a high fee and the absence of alternative providers. They will ordinarily need facts showing defendant-created coercion, deception, billing for unperformed services, intimidation, or another substantial form of unfairness.

More broadly, the decision distinguishes market pressure created by a business from restrictions created by statute. A defendant is not necessarily engaged in oppressive conduct merely because it operates as the exclusive provider within a legislatively prescribed system.

The holding is nevertheless limited. It does not establish that every fee at or below $475 was reasonable before 2023, does not decide the retroactive effect of the amendment, and does not immunize property managers that engage in fraud, conceal fees, charge for services not rendered, or employ coercive collection practices.

Conclusion

Greenswag establishes that an allegedly excessive condominium disclosure fee does not state an unfair-practices claim when the complaint relies only on price, statutory exclusivity, and the electronic availability of the documents. The relevant public policy primarily protects buyers, the statute—not the management company—creates the seller’s limited choice, and timely document production constitutes a service with legally recognized value.

The decision reinforces a broader Illinois consumer-law principle: price alone is generally not unfairness. Liability requires additional facts connecting the defendant’s own conduct to oppression, a violation of public policy, or substantial consumer injury.