Board has power to evict tenants

Q. Our condominium association decided that the percentage of rentals was too high, so an amendment to the bylaws was prepared, approved and recorded that prohibits rentals of units. The amendment "grandfathered" any existing rental units and also made an exception for rentals to certain family members (parents, children, siblings and grandparents of the owner).

Because of poor management by the previous manager and previous board, units have been leased in violation of the lease restriction amendment. As a result, the percentage of units being leased is so high that most lenders will not approve mortgages, which impacts all owners and purchasers. The new manager has identified units leased in violation of the amendment. What legal recourse does the board have in regard to rentals that violate the bylaws amendment?

A. In Illinois, the board has a very effective remedy to address the leasing of units in violation of the associations' governing documents. In addition to any other remedies, by filing an action jointly against the tenant and the unit owner, an association may seek to evict a tenant under the provisions of Article IX of the Code of Civil Procedure for failure of the lessor and owner to comply with the leasing requirements prescribed by the declaration, bylaws and rules and regulations of the association.

In other words, the association can terminate leases that violate the lease restriction by issuing a 10-day notice to the owner and tenant. If the tenant does not voluntarily vacate the unit in the 10-day period, the board can file an eviction action against the owner and tenant. The association can also seek recovery of its attorney's fees from the owner.

Q. Is a condominium association required to enforce rules and regulations on an equal basis against all owners? I have read the bylaws and rules and regulations for my association, and it does not say anything about equal application of rules.

A. In general, rules must be enforced uniformly by the board. If the rules are not uniformly enforced, an owner against whom a rule is being enforced may be able to assert a defense of "selective enforcement." Of course, that does not mean that there are no circumstances under which a board can within its discretion elect not to pursue a violation. This would have to be a decision based on all the facts and circumstances of a particular matter.

Q. The declaration for our association permits leasing of units, and does not describe a minimum term for a lease. However, the declaration does state that units can't be used for hotel or transient purposes. Is this language enough to prohibit the short-term, one- or two-day type rentals of units that have become popular?

A. Even without minimum lease term language in the declaration, the prohibition against hotel or transient occupancy of units language in the declaration should be enough to prohibit the short-term occupancies of which you speak.

Q. Is there a minimum number of times the board of our association must meet?

A. The requirements for a condominium and a common interest community association in Illinois are the same. The board must meet at least four times a year. The actual number of board meetings held each year, over and above the required minimum, should depend on the actual business that needs to be conducted.

I find that many association boards meet more frequently, often monthly, as a matter of routine even when there is no actual business to consider. That isn't necessary and can lead to "meeting burnout" and difficulty in recruiting candidates for the board. The efficient use of volunteer board members' time will benefit the community and the board members. Meet when there is association business to conduct; not just for the sake of meeting.

• 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.