Condo talk: Dog and tenant restrictions

Almost every declaration for a homeowners association includes some sort of restriction on the use and occupancy of the units. These provisions provide for what “thou shall do,” and for what “thou shall not” do.

The two most common use and occupancy issues that are brought to my attention concern dogs and leasing of units.

A typical declaration expressly permits the keeping of dogs in units, and the leasing of units. Both are usually subject to reasonable rules of the board of directors. Boards that must deal with incessantly barking dogs and soiled common elements, or complaints about tenants or the number of renters, often consider prohibiting the keeping of dogs and/or restricting the leasing of units. As a result, I am often asked whether a board can adopt such restrictions.

Adopting rules is a relatively simple process, and can generally be accomplished by the board without owner approval. However, amending an association’s declaration can be a relatively difficult undertaking. A declaration amendment may require approval by the board and a supermajority of the owners, and in some instances approval by a percentage of the mortgage holders of the individual units. There is always uncertainty as to the potential outcome of any vote on an amendment to a declaration, so it is easy to understand why a board would rather adopt a rule than pursue an amendment to the declaration.

The Illinois appellate court chimed in on the issue some time ago; sort of. Associations do have the right to amend their declaration to prohibit leasing of units; that much is clear. The appellate court analyzed the different standards of review that a court should use to evaluate the validity of an amendment to a declaration adopted by the owners versus a rule adopted by the board. That discussion is frequently raised as authority for a board to prohibit dogs and/or leasing of units by way of a rule, without an amendment to the declaration.

However, the discussion about restricting the right to lease units by way of rule adopted by the board is not binding since that issue was not before the court.

In a later decision, the appellate court was asked to decide the validity of a pet (no dog) restriction rule implemented by the board directors of a well known Chicago condominium. The appellate court found that the rule adopted by the board was reasonable and enforceable and, importantly, the board could adopt a rule to prohibit the keeping of dogs on the property. That is, the association there did not have to amend the declaration. The rationale for this decision is noteworthy; the court stated that its decision was based, in part, on the fact that the declaration was silent on the ownership of dogs.

Reading the two cases together leads to the conclusion that the board of an association can adopt a rule to, for example, prohibit dogs or leasing, or to restrict the number of units that can be leased, only if the declaration is silent on the issue. However, if the declaration addresses the specific matter (like most association declarations address and permit dogs and leasing) an association would have to amend the declaration, with the necessary unit owner approval, in order to impose such restrictions.

Yes, there are numerous associations that prohibit the keeping of dogs and leasing of units by way of rule when they should probably be amending the declaration. However, there is a growing concern among sellers that dog and leasing restrictions limit the pool of potential purchasers of units. Rules that attempt to impose such restrictions may increase the threat of litigation from such owners, and this litigation has a significant likelihood of being decided against the association.

Unless and until an Illinois appellate court decides that a board can prohibit pets and leasing by way of rule when the declaration permits them, the cautious approach dictates prohibiting the keeping of dogs and/or the leasing of units by way of a properly adopted amendment to the association’s declaration. Boards that simply adopt rules to impose such prohibitions may be playing a game of “chicken.” And chickens are prohibited in just about every declaration.

Ÿ David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.