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posted: 1/24/2014 12:01 AM

How to limit number of people in a unit

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Q. Many of the units in our association are occupied by well over what the board considers an appropriate number of people. For example, six or more adults live in many of our two-bedroom units. This creates parking problems, garbage disposal issues, and stresses our mechanical systems like the plumbing system that was not designed for the number of people living in our building. Can the association limit the number of occupants of a unit?

A. The association should investigate whether the local municipality has an ordinance that establishes occupancy limits. If yes, and if the current occupancy violates the ordinance, the association has several options. The association could report the violation to the municipality for enforcement. Some municipalities are better than others about taking on these violations.

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If for whatever reason the municipality won't take action, the association may be able to proceed directly against the owner/occupants for such a violation. The typical declaration includes a provision that says that violation of the law constitutes a violation of the declaration. The violation could be redressed by the board by levying a fine after notice of the violation and an opportunity for a hearing. More drastic action, such as a lawsuit to require compliance, could be initiated if an owner refuses to comply voluntarily.

Amending the declaration to restrict the number of occupants in units may be another option. Note; however, that the Fair Housing Act Amendments of 1988 prohibit discrimination based on familial status. The Fair Housing Act does contain an exception whereby reasonable occupancy restrictions of a municipality are excluded from the provisions of the Fair Housing Act.

However, there is no similar language concerning private covenants. Some courts have found that the Fair Housing Act Amendments do apply to condominium associations, and that occupancy limitations may constitute unlawful discrimination under the Fair Housing Act. Nonetheless, other courts have upheld occupancy restrictions in the private arena that limit occupancy of each bedroom to no more than two persons. One case permits reasonable occupancy limitations imposed by a landlord if there is a "compelling business justification for a policy which limits occupancy." This case is from another jurisdiction and, while instructive, is not binding in this federal circuit.

As such, an amendment to the association's declaration (not simply the rules) should recite the "business justification" for the amendment. However, there is no guarantee that any limitation on the number of occupants of a unit contained in a private covenant (declaration) will withstand scrutiny under the Fair Housing Act. This is a complicated area of the law, so the board should speak with counsel.

Q. Is there a general rule about who is responsible for snow removal in an association? If the association's governing documents require the association to remove snow from a private driveway, can the association require the owner to remove the snow from this area?

A. There is no all-encompassing general rule on the issue. That said, typically, the declaration will provide that the association maintains the common elements/common areas, and this would generally include snow removal on the private roads in an association. Beyond that, the answer requires careful review of the association's declaration.

For example, one declaration may require the association to remove snow from private driveways; another may impose this responsibility on the owner. The same can be said for sidewalks and steps within an owner's lot in a common interest community.

In general, if the association's governing documents require the association to remove snow from a particular part of the property, the association could not compel an owner to perform this responsibility.

• 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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