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posted: 9/15/2012 4:17 AM

How to combine two condo units into one

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Q. I own two side-by-side condominium units. The doors to the two units are also side by side, in a small vestibule set back from the common hallway for all of the units on the floor. I would like to combine the two units into a single large unit, and enclose the vestibule to create a single entrance. What is the legal process to accomplish this?

A. Unless the condominium instruments expressly prohibit the combination of any units, an owner can combine two individual units into a single new unit. This requires an amendment to the association's declaration.

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The owner of the two adjoining units must make written application to the board of managers requesting an amendment to the condominium instruments. The amendment would set out the combined percentage of ownership for the new unit (this would simply be the sum of the percentage of ownership for the two individual units), and the combined unit number.

The amendment must also include a revised plat of survey showing the boundaries of the combined unit. The amendment, approved by the board, only needs to be signed by the owner of the combined units. That is, the general amendment procedure in the condominium declaration, requiring approval by some specified percentage of all the owners, is not applicable.

Once the amendment is recorded with the recorder of deeds, the unit will pay a single assessment to the association (based on the combined percentage of ownership) and the county will issue a single tax bill for the combined unit.

The enclosure of the vestibule raises an interesting issue. The Illinois Condominium Property Act would permit the amendment to grant the owner of the combined unit, with the board's approval, the exclusive right to use and enclose the common element vestibule. However, a recent appellate court decision requires the unanimous approval of all of the unit owners in the association to permit this grant of the exclusive right to use this portion of the common element vestibule. That's not going to happen very often. But stay tuned. Legislation is likely to be introduced this fall to clarify the ability of the board to grant this exclusive use of the common elements to the owner of a combined unit without approval of all of the owners in the association.

This is a complicated matter, and the association's counsel should be involved to prepare the amendment and to ensure the legal requirements for combining a unit are followed.

Q. I contacted my condominium association about repairs that needed to be made to the balcony serving my unit. The repairs were made, and then I received an invoice for the cost of the work. Don't my assessments pay for these repairs?

A. The balconies in your association are limited common elements. The declaration of condominium for your association provides that the board of managers of the association is responsible for the maintenance, repair and replacement of the common elements, including the limited common elements. However, as permitted by the Condominium Property Act, the association's declaration also provides that the cost of maintenance, repair and replacement of the limited common elements must be assessed to the owner served by that limited common element. Based on this language, it was appropriate for the association to charge the balcony repair cost to you.

Q. A unit owner in our condominium association works for a lighting company and has offered to sell us light bulbs at a significant discount from what we would pay anywhere else. We have a lot of lights, and this would result in a significant savings. The unit owner is not on the board, but his wife is. Does this board member spouse have some sort of conflict of interest?

A. A board member can have a conflict of interest; the Condominium Property Act just requires disclosure to the owners, who then have an opportunity to file a petition with the board. The petition would require the board to call a meeting of the owners to vote on the proposed contract.

In this case, however, the board member does not have a conflict of interest. This is because the board member and her spouse do not have any ownership interest in the lighting supply company. Accordingly, the board member whose spouse is employed by the lighting supply company may attend the meeting of the board where a decision is to be made on the contract, may participate in discussions about the contract, and may vote concerning whether to purchase light bulbs through the spouse of the board member. Of course, the potential political ramifications of this decision should be considered by the board.

• 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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