How to combine two condominiums

Q. I own a condominium unit. I am considering buying the unit next door and combining them into a single unit. This would not just be combining them physically; I want the two units recognized as a single unit under the law. 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 dramatic entrance. What is the legal process to accomplish this?

A. Unless the declaration and bylaws of the association expressly prohibit the combination of any units, the Condominium Property Act provides that an owner can combine two individual units into a single new unit. This requires an amendment to the association's declaration.

The owner of the two adjoining units must make written application to the board of managers requesting an amendment to the condominium instruments. Although no standard is set out in the condominium act for approval, presumably the approval could not be unreasonably withheld by the board. 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 procedure to amend the condominium declaration, requiring approval by some specified percentage of all the unit owners, is not applicable.

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

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

The enclosure of the vestibule to create a single entrance raises an interesting issue. The condominium 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 - or part of the hallway to create a vestibule. However, an appellate court decision requires the unanimous approval of all unit owners in the association to grant an exclusive right to use a part of the common elements. That's not going to happen very often.

I had hoped to see legislation introduced 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. Nothing has been proposed.

Owners of a combined unit sometimes find there is no market for the larger unit when they go to sell. The combination of units into a legally single unit is not necessarily permanent, as the combined unit may later be subdivided into two units through a process similar to that required to combine the units.

Note too that an owner may be able to physically combine two units without creating a single unit from a legal standpoint. The act provides that a unit owner owning two or more units has the right, subject to such reasonable limitations as the association's declaration of condominium may impose, to remove or otherwise alter any intervening partition, so long as the action does not weaken, impair or endanger any common element or unit. This permits an owner to "physically" combine two or more adjacent units into a single living space, and each of the combined units retain their status as an individual unit with their original separate percentages of ownership in the common elements.

• 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.