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posted: 11/2/2013 12:54 AM

To plow or not to plow, that is the question

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Q. The homeowners association next to our association removes the snow from its asphalt bike and walking path in the winter. Our homeowners association does nothing with our asphalt bike and walking path in the winter, and most times it is covered with snow or ice, making the path virtually impossible to use. The board of our association takes the position that because it doesn't shovel the path at all, it cannot be successfully sued for negligence if someone slips and falls.

Is there more of a liability pertaining to slips and falls if it is maintained? Shouldn't the association have to maintain the walking path year round?

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A. There is merit to the board's position about plowing with respect to liability to a third person for injuries suffered in a slip and fall on snow. However, the board may not get off so easy. If the association's governing documents provide that the association is responsible to maintain, repair and replace the asphalt bike and walking path, it may be breach of duty for the association not to plow it. In such a circumstance, failure to plow could arguably expose the association to legal action by an owner who is not able to use the path year round. "Rock," meet "hard place."

I appreciate the board's thinking here. However, this is a situation where the risk of loss might be managed through the procurement of appropriate types and amounts of insurance, together with an appropriate snow removal program. The board should speak to its insurance agent to develop an approach that will protect the association from loss while permitting the owners to use an amenity that could be available year round.

Q. My condominium association's declaration was amended some time ago to provide that unless you were an original owner, you were not allowed to rent your unit. The declaration was recently amended again, and now it provides that only 10 percent of the units can be leased at any one time. We are at the limit, and we have a waiting list of owners who want to lease their units. I need a bigger home, but I am having trouble selling my unit. Renting would be a tremendous option. Am I stuck with the limitation on leasing?

A. As long as the declaration was amended in accordance with the amendment provision of the declaration, the percentage limit on leasing should be enforceable.

Many associations amended their declaration to prohibit all leasing of any units. However, the secondary mortgage market lender guidelines were revised after the real estate bubble burst. The revised guidelines have been interpreted by HUD to prohibit total bans on leasing. As such, many associations have again amended their declaration, and some for the first time, to restrict leasing to a specified percentage or number of the units, rather than a total ban on leasing.

A typical lease restriction amendment will include both a grandfather provision and a hardship provision. While your situation is not a classic hardship, you should review the recent amendment to see if there is a hardship provision and, if so, under what circumstances it may be applicable.

Q. I am a member of a homeowners association for our subdivision of single-family homes that was started and incorporated with the state in the 1950s. The association has bylaws; however, there are no covenants recorded against the homes and membership in the association is voluntary. The annual dues are in the $100 range. In the past few years, costs have risen while residents' contributions have decreased to almost half of the community. Is there a way that we can make dues mandatory?

A. There are numerous associations out there just like yours. In order to make dues mandatory, each and every owner is going to have to agree. Further, in order to bind future owners, appropriate covenants would have to be recorded against every home, with the approval of every owner. This can be accomplished through hard work. In the absence of such a successful effort, and depending on the services provided by the association, the association might claim that owners who do not contribute are being unjustly enriched. This would require potentially expensive litigation to resolve.

• 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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