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posted: 4/14/2012 4:59 AM

Condo talk: Condo owners, don't expand into common areas

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Q. Our townhouse-style condominium units include a rear patio and a garden area that are limited common elements of the unit. Several owners have taken the liberty to expand their patio or garden several feet into the general common element open space. In other instances, the board has granted owners permission to do this. Is this permitted?

A. Owners do not have a right to extend their limited common element patios or gardens onto the general common elements. Likewise, the board of an association will generally not have the authority to grant an owner permission to do so. To do so would constitute the allocation of a portion of the common elements for the exclusive use of a unit owner. This is beyond the scope of the board's authority. Case law in Illinois provides that an owner cannot use a portion of the general common elements for their exclusive use without the approval of all of the owners in the association. This is because the common elements are owned in common by all of the owners.

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Q. Many residents of our association have dogs, and the barking of the dogs "drives me crazy." Whenever I hear a dog bark, I complain to the board, but the board has not done anything about the dogs. Doesn't the board have a responsibility to address the noise?

A. Dogs bark; that's a fact of life. So, there is going to be some amount of barking in an association that permits dogs. A typical covenant says something like "nothing shall be done in a unit that is noxious or offensive, or that constitutes an annoyance to other residents." The issue then is not whether a dog is heard barking. Rather, the issue is whether the barking rises to the level of violating the association's covenants or rules. It may be that the board in your situation has made a threshold determination that the barking of which you complain does not rise to the level of a violation. When barking does reach a level that, in the determination of the board, is a violation, the board could levy fines after providing the owner notice and an opportunity for a hearing. If the problem is serious enough, the board could require the owner to remove the dog from the property.

Q. I live in an association, the initial phase of which is intended to be comprised of more than 200 units. The declaration was recorded, and the first sale occurred, in 2005; however, only a fraction of the units have been sold. The developer, who filed bankruptcy, is still in control of the association. Many, but not all, of the unsold units were sold in bulk to a single entity. There is also another parcel of property that can be added into our association. When does the developer have to turn over control to the owners? Is there a time limit when the additional parcel can be added into the association? Is the entity that bought most of the unsold units a new developer?

A. Unfortunately, this is not an uncommon scenario since the real estate "bubble" burst several years ago. Despite the weak sales, the developer was required to turn over control of the association to the owners no later than three years after the recording of the declaration. That means the developer was required to have called and held a meeting to elect members to the board from among the owners in 2008. The developer might argue that the three-year period does not expire until the last unit is added into the association; however, the law is not settled on this issue.

A declaration can grant a developer up to 10 years from the date of recording to add specifically described additional property into the association. Assuming the declaration grants the developer the maximum amount of time add specific property into the association, the developer could add the additional property into the association until some time in 2015.

The entity that acquired most of the unsold units from the developer is not a developer. In order to be a successor developer, the entity that acquired a bulk of units would have had to acquire the developer's entire interest in the property. The entity here is just like any other owner; it just owns more units.

The fact that the developer has filed for bankruptcy does not simplify the matter, and the owners may have to participate in the bankruptcy case to address these issues.

• 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.

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