Condominium property must be safe from neighbor's trees
Q. A neighboring landowner's trees are planted so close to the property line of our condominium association that the branches bang into the windows and siding of our building. One branch actually broke a window of a unit. What can the association do about this?
A. Believe it or not, there is actually significant case law in Illinois concerning tree encroachments. The association does have rights and remedies if tree branches from adjacent private property are encroaching on the association's property and causing a dangerous condition. If the adjacent landowner does not trim the branches back to at least the property line after a written demand, the association may be able to trim the trees on its own and seek reimbursement from the tree owner. As an alternative to the "self-help" remedy, if the adjacent landowner fails to comply, the association could file suit to require the owner to trim the encroaching trees at the tree owner's expense.
Q. The board of our condominium recently adopted a resolution at a board meeting requiring all owners to provide the association with a copy of their unit key, and to do so by a certain date. This was adopted without any prior notification to the owners. The board went on to state that a fine will be immediately added to the account of any owner who does not provide a key by the deadline.
A. The board could impose such a requirement by rule, and can levy a fine for a violation of the rule. However, the board's process here is seemingly flawed for a couple of reasons.
The adoption of the requirement that owners provide the association with a unit key requires more than the adoption of a resolution at a board meeting. Rather, the board would have to adopt the rule through the specific rules-adoption process set forth in the Condominium Property Act. This would require the board to call a meeting of the owners to discuss the proposed rule, the notice for which must include the text of the proposed rule. Then the board could call a board meeting to vote on the rule.
The board cannot simply levy a fine if an owner does not comply with the rules.
Before a board can levy a fine for a violation of rules, the board must provide the owner written notice of the violation and provide an opportunity for a hearing.
Q. Our condominium association imposes a late charge every month that an owner's account has an open balance, even if the assessment for that month was paid on time. Is this permitted?
A. The board may impose charges for late payment of a unit owner's proportionate share of the common expenses. However, case law states that condominium associations may charge a late fee only for the month that an assessment is not paid, not paid in full, or not paid on time. Therefore, the practice of charging a late fee whenever there is an open balance on an owner's account at the end of a month, even if the assessment for that month was paid on time, would violate case law.
Q. What is a reasonable late charge for nonpayment of association assessments?
A. Illinois appellate case law found that a $25 late charge was reasonable. In general, the late charge must reflect the administrative expenses of the association in dealing with the unpaid assessment. If the association's late charge is more than that, it should document the associated administrative expenses. Note too that a late charge can't be punitive. This is somewhat counterintuitive since late charges are often intended to be exactly that.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. 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.