Board may temporarily close pool for insurance issues
Q. We own a condominium unit in the suburbs that has various amenities, such as tennis courts, a party room, an exercise room and a swimming pool. As the result of a large insurance claim, the association cannot obtain liability insurance that will cover the swimming pool. Therefore, the board closed the pool. Can the association take away an amenity like the swimming pool without a vote of the owners?
A. The board of managers of a condominium is responsible for the maintenance, repair, replacement and improvement of the common elements, such as the pool you describe. In general, a board cannot make the unilateral decision to eliminate such an amenity. However, a temporary closure of the pool, while the board diligently sorts out the insurance issue and obtains liability insurance, seems defensible in light of the risk of loss to the association if it does not have liability coverage on the pool.
The board should review Section 12.1 of the Condominium Property Act that establishes the Condominium and Common Interest Community Risk Pooling Trust Act, with its counsel. That act might offer your association relief in this situation.
Q. I live in a two-story condo, and all bedrooms are directly above and below one another. My downstairs neighbor is very elderly. For health purposes, he sets an extremely loud radio alarm every two hours every single night of the week to wake him. This begins at 11 p.m., with the final alarm going off at 5 a.m. The alarm is set so loud it also wakes me up every two hours, as well. I have spoken about this with the board and property manager already, but they have not helped. Any suggestions?
A. Associations struggle all of the time with their role in noise issues between two unit owners. That is further complicated here by the health issue that drives your neighbor's setting of the loud alarm. The frequency and volume of the alarm might rise to the level of a violation of the association's governing documents.
However, the ailing owner may be entitled to a "reasonable accommodation" in connection with those restrictions. What's a "reasonable accommodation" is to be determined on a case-by-case basis, and would take into consideration the alternatives available to the owner in question. Note, too, that you as an individual can assert a claim directly with your neighbor if the board finds it would not be appropriate for it to be involved here.
In these situations though, I would suggest that the board try and "facilitate" a solution between the two owners, rather than taking an aggressive enforcement stance. This would involve arranging a meeting between the two unit owners to attempt to work out a voluntary resolution.
Q. Balconies, windows and doors in our condominium are limited common elements. Our declaration states that the board is responsible for maintenance, repair and replacement of the limited common elements. Can the board charge the cost of that work to the owner of the unit?
A. Yes, if the declaration specifically provides for an assessment in connection with expenditures for limited common elements assigned only to individual units. If the declaration is silent on the ability of the board to charge the cost of this work to the unit owner, those expenses could not be charged back to an owner and would be paid for by the association from the association's funds.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. 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.