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posted: 8/5/2017 6:00 AM

Board can't overrule condo declaration

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Q. The declaration of condominium for our association prohibits animals except "dogs, cats or other usual household pets (which) may be kept in units, subject to rules and regulations adopted by the board." Many years ago, the board of our association adopted a rule that limits the number and weight of dogs that can be kept in units. Based on what I have read in your column, I question whether this rule is valid. Could the board impose these restrictions by rule?

A. Based on the common language in the association's declaration of condominium, the imposition of a rule that restricts the number and weight of dogs that can be kept in a unit is very questionable given recent case law.

This is based on the Illinois Appellate Court decision, issued on Feb. 3, 2016, in Stobe v. 842-848 West Bradley Place Condominium Association. In that case, the Illinois appellate court ruled that the board in this case could not adopt a rule to restrict leasing when the declaration of condominium permits leasing.

Based on the significant holding in Stobe, the board of an association cannot adopt a rule that conflicts with the declaration on any matter (not just leasing).

The rules that can be adopted by the board would involve the handling of pets -- issues such as the leashing of permitted pets, cleaning up after permitted pets, registering of permitted pets, requiring permitted pets to be vaccinated with proof thereof. However, limiting the number and weight of permitted pets by rule adopted by the board, when the declaration allowing pets does not spell out such limitations, would strongly appear to be unenforceable under the Stobe decision.

Let me note that the Stobe case discussed a potential limited exception. If the declaration specifically permitted the board to adopt rules that limit the weight and number of permitted pets, the board may have been able to do so. But such language is not found in the declaration here that governs pets.

Therefore, in order to impose limits on the weight and number of permitted pets, the association's declaration is going to have to be amended, with unit owner approval, and not merely by a rule adopted by the board.

Q. Can a condominium association require owners to lock into a bulk cable/internet plan with a fee that is rolled into the condo fee? Presently, each owner contracts for this service, if they choose to have it at all.

Our year-round residents in Illinois would benefit with lower bulk rates. However, the snowbirds who head down South would have to pay for two internet companies; there would be no option to discontinue the service here during the months when they are at their winter homes.

A. Section 14.3 of the Illinois Condominium Property Act governs this issue. The board is authorized to obtain, if available and determined by the board to be in the best interests of the association, cable television or bulk high-speed internet service for all of the units of the condominium on a bulk identical service and equal cost per unit basis. The board can assess and recover the expense as a common expense. Further, the board can assess each and every unit on the same equal cost per unit basis; rather than based on percentage of ownership.

• 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.

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