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posted: 8/2/2014 12:01 AM

Balcony cannot be extended without owners' permission

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Q. Our townhouse style condominium unit includes a rear balcony that is a limited common element of the unit. I want to extend my balcony about a foot. Is this permitted?

A. Owners do not have a right to extend their limited common element balcony onto the general common elements. Likewise, the board of an association will generally not have the authority to grant an owner permission to do so. To do so would constitute the allocation of a portion of the common elements for the exclusive use of a unit owner. This is beyond the scope of the board's authority. Case law in Illinois provides that an owner cannot use a portion of the general common elements for their exclusive use, without the approval of all owners in the association. This is because the common elements are owned in common by all of the owners.

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Q. Can a board of an association lock an outdoor common element water spigot that at one time was for communal use?

A In general, the board's duty is to maintain, repair and replace the common elements of the property, and not to abandon or terminate the use of a common elements -- even one like a water spigot.

I do not know the reason the board took this action, and there may be supportable rationale. In any event, the board could certainly adopt reasonable rules concerning the use of a common element water spigot, in order to avoid unreasonable use by residents.

Q. I am the newly elected secretary of our self-managed association. I have been advised that the association is incorporated, but I am not sure of that. What should I do?

A. There are protections afforded to an association that is incorporated and many banks require associations to be incorporated. Therefore, you should confirm that:

• The association is incorporated as a nonprofit corporation.

• An annual report has been prepared and filed with the Illinois Secretary of State, and that the association's attorney is designated as the registered agent.

• The association is in good standing with the secretary of state's office. If the association's corporate status has been dissolved (for failure to file an annual report), articles of reinstatement need to be prepared and filed with the state.

This information can be obtained through the Illinois Secretary of State's website. The association's counsel can assist the board in developing this information and in preparing appropriate documents to be filed with the state as needed.

Q. It's annual budget time for our association. Previously, the board of our association has held a meeting of the owners to discuss the proposed budget before the board voted on the budget. Is the board required to hold a meeting of the owners to discuss the proposed budget?

A. Whether a condominium or a common interest community association, the board does not need to call a meeting of the owners to discuss the proposed budget. Here's the procedure that has to be followed by the board to adopt the annual budget. A copy of the proposed budget needs to be mailed or delivered to owners at least 30 days prior to the board's adoption of the budget. Also, written notice of the date, time, place and purpose of the board meeting needs to be mailed or delivered to the owners no less than 10 and no more than 30 days prior to the board meeting to adopt the annual budget. In order to avoid two mailings, both the proposed budget and the notice of board meeting should be mailed or delivered to owners exactly 30 days before the meeting where the board will adopt the annual budget.

• 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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