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Article posted: 1/5/2013 5:18 AM

Small association can adopt state rules regulating larger ones

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By David M. Bendoff

Q. We are a small common interest community association, organized as a nonprofit corporation, with a very minimal and outdated declaration of covenants. Our annual assessment income budget is less than $100,000. Is our association covered by the Common Interest Community Association Act? If not, is there a way for the association to be covered?

A. A common interest community association organized under the General Not for Profit Corporation Act and that has either 10 units or less, or annual budgeted assessments of $100,000 or less, is exempt from the Common Interest Community Association Act. However, the association can elect to be covered by the law. This requires a vote of either a majority of the association's board of directors or of a majority of the members of the association.

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An election by an association to be covered by this law could create some needed direction and guidance for an association whose governing documents are sparse or antiquated. This benefit would also permit the board, without owner approval, to amend the association's declaration to bring it into conformity with the Common Interest Community Association Act.

Q. Title to a unit in our condominium association was issued to the purchaser of the unit at a tax sale. The purchaser has told the board he is not subject to any of the restrictions in our declaration and does not have to pay assessments. Is this correct?

A. The person who acquires a unit via a tax deed is subject to all of the provisions of the covenants, conditions and limitations contained in the association's declaration and bylaws. The conveyance of the tax deed extinguishes the association's lien for assessments owed as of the date of the tax deed's issuance. As a result, the association can't pursue the collection of the former owner's assessments from the tax purchaser. However, the person who obtains a tax deed is responsible for assessments on a go forward basis from the date of issuance of the tax deed.

Q. Leasing is prohibited under an amendment to our association's declaration, without any exceptions. The board has nonetheless granted certain owners' requests to lease, citing "undue hardship" that results from their inability to lease their units. Is the board permitted to grant an exception to the lease restriction?

A. A board is generally not authorized to grant exceptions to the restrictions in an association's declaration. A better drafted lease restriction amendment would include a specific "hardship" provision that would give the board the authority to grant owners a right to lease their unit despite the lease restriction. Such permission could only be granted if the owner demonstrated a hardship, based on criteria set forth in the amendment or in a policy established by the board.

In the absence of a "hardship" provision, the board would not have the power to waive or grant exceptions to the lease restriction imposed by the lease restriction amendment to the declaration. The board should consider a further amendment to the declaration to grant it the authority to permit an owner to lease who can demonstrate a "hardship." Additionally, such a revised amendment could permit some specified number of units to be leased, rather than the current total ban on leasing.

Q. The declaration and rules of our condominium association prohibit owners from attaching anything to the common elements, including the front doors of units. A Jewish owner in our condominium association installed a mezuza on the outside frame of the front door of his unit. This has resulted in violation letters and fines. Can the board do this?

A. The board has the power to adopt and amend rules and regulations covering the details of the operation and use of the property. However, no rule or regulation can impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution, including, but not limited to, the free exercise of religion. Further, no rule or regulation can prohibit any reasonable accommodation for religious practices, including the attachment of religiously mandated objects to the front-door area of a condominium unit.

Clearly, and case law supports this, the Jewish unit owner is permitted to install the mezuza on the front door frame of his unit. Regardless of whether an object is religiously mandated, a board would be wise in permitting owners to display seasonal holiday decorations within guidelines established 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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