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posted: 4/14/2018 6:00 AM

Board should follow policy in towing of cars

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Q. Can our association tow a unit owner's vehicle if the vehicle is parked in violation of the association's rules?

A. Towing of unit owner vehicles parked in violation of the rules would be permitted if the association follows an appropriate procedure. The association needs to adopt rules that are very specific regarding towing, and under what circumstances this remedy may be employed.

Towing of resident vehicles for a violation of a parking rule is a rather drastic remedy. In an abundance of caution, an association should follow the "due process" required to levy a fine before it tows a resident's vehicle.

That is, under a conservative approach, an association would provide the resident with written notice of the violation and an opportunity for a hearing before the board prior to their vehicle being towed for a rules violation. That said, it could be appropriate to tow a vehicle immediately, without such a notice or hearing, for safety reasons if the vehicle is blocking vehicular or pedestrian traffic or is parked in a fire lane, for example.

Nonresidents of the association would not typically be entitled to the due process afforded residents. Further, appropriate signs generally need to be displayed on property where vehicles may be towed.

Q. Does the new section of the Illinois Condominium Property Act that requires condominium associations of 100 units or more to use generally accepted accounting principles also apply to master associations? Or does that requirement have to specifically be in Section 18.5 of the act?

A. The Illinois Condominium Property Act generally only applies to condominium associations that are expressly submitted to the provisions of this law through the declaration of condominium. That said, Section 18.5 of the act was created to govern master associations, and that section does not govern condominium associations.

Moreover, other sections of this law do apply to master associations. For example, Section 18.6 of the act that governs the display of certain flags applies to master associations, and there are definitions in Section 2 of the act that refer to master associations.

Section 18.10 of the act, which went into effect Jan. 1, provides that "(a) n association subject to this Act that consists of 100 or more units shall use generally accepted accounting principles in fulfilling any accounting obligations under this Act." Importantly, Section 18.10 refers to "an association subject to this Act," and it does not state "property submitted to the provisions of the Act" as stated in other sections of the act. That is a notable distinction and affects my response here.

Technically, master associations are "subject to the act" insofar as Sections 18.5 and 18.6 discussed above are part of the law and apply to master associations. Since a master association is "subject to the Act" (or at least to Sections 18.5 and Section 18.6 of the law), a strong argument can be made that a master association of 100 or more units would have to use GAAP for any accounting obligations required in Section 18.5 of the act (e.g., the accounting in Section 18.5(c)(2)). It's hard to tell if this was the intent of the legislature when it added Section 18.10 to the act, but the language of that section (and the rules of statutory construction) would indicate that it did.

Even if a master association were required to follow generally accepted accounting principles, those principles would not be required of any additional accounting requirement set out in the master association's declaration that is not required under the act.

Clarification: My March 31 column indicated that a declaration prohibiting certain felons from owning a unit in an association would generally not be unlawful. Do note that the Department of Housing and Urban Development has guidelines in place that state overly broad policies to bar criminals from housing can be de facto discrimination, if they have a disproportionate impact on a protected class, such as race. This is generally reviewed on a case-by-case basis. Any association that is considering the addition of language in their declaration to bar felons from acquiring units would be well advised to consult with counsel to make sure the policy is carefully drafted, and not overly broad, and is being considered with the safety of residents in mind.

• 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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