Felons are not protected against housing discrimination

Q. Can a condominium board deny a felon from buying a unit? Isn't that discrimination?

A. A condominium board generally does not have a right to prohibit a person from purchasing a unit. However, if an association's governing documents provide a right of first refusal, the board could implement the process to purchase the unit - thereby preventing a prospective purchaser from acquiring the residence.

The right of first refusal can generally be exercised for any reason, as long as it is not for a reason that constitutes unlawful discrimination.

That said, an association could arguably amend its declaration to prohibit ownership of a unit by a felon. Of course, not all felonies may raise the same security concerns for an association, so an amendment would have to be carefully thought about by the board and drafted. That is, certain felonies may raise realistic security concerns by residents of an association, whereas certain others might not.

While a provision in a declaration that bars felons from owning a unit would "discriminate" against felons, felons are not a protected class (such as race, gender, religion). As such, this discrimination would not generally be unlawful.

Q. Last year, a special assessment was put into place at our condominium association. At the board meeting, the manager stated this option would be better than increasing monthly assessments because it was just for one year and not permanent, like increases in association fees might be. We paid the "13th month assessment" last year, which was equal to one month's assessment.

Nothing was said that this special assessment would be for more than one year. I was on the board at the time, and I know this was not discussed. Now, this year, yet another special assessment is being put into place, and our association fees are also being increased. Is this legal? Did this have to be brought up to the condominium owners for approval?

A. Let me describe what the Condominium Property Act provides regarding special assessments. Section 18(a) (8) of the act governs special assessments and supersedes any contrary provisions of the condominium declaration. The board may generally adopt a special assessment without unit owner approval. However, under certain circumstances, the unit owners have an opportunity to call a meeting and vote to reject the special assessment after it is adopted by the board.

Specifically, if any separate assessment adopted by the board would result in the sum of all regular and separate assessments payable in the current year to exceed 115 percent of the sum of all regular and separate assessments payable during the preceding year, the owners with 20 percent of the votes of the association have a right to file a petition with the board within 21 days of the board's adoption of the special assessment.

If the board receives such a petition, the board must call a meeting of the unit owners within 30 days of the date of delivery of the petition so that the owners can vote on the separate assessment. Unless a majority of the total votes of all unit owners in the association are cast at the meeting to reject the separate assessment, it is ratified.

Note that the act provides that separate assessments for expenditures relating to emergencies or mandated by law may be adopted by the board without being subject to unit owner approval or a separate assessment. "Emergency" means an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners.

The board can adopt a multiyear special assessment.

You need to look at the minutes of the meeting at which the board adopted the special assessment to see what it adopted and if it was for a single year or for two years, and you may need to crunch some numbers to determine if the special assessment was subject to owner petition and vote. However, that window may have closed.

• 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.