Condo board can cap number of leases
Q. Our townhouse association is considering revising the declaration to establish a maximum cap on the number of units that can be leased in the complex. According to our declaration, an amendment would only require approval by a simple majority vote of unit owners. However there are several units currently being leased, and the owners of those units are adamantly opposed to this proposal. Other owners question the legality of the association to restrict their rights as an owner to rent their unit. What legal ramifications might there be if we proceed with such an amendment?
A. The Illinois appellate court has held that an association can amend its governing documents to prohibit leasing of units. That is, owners purchase their units subject to the covenants, as they may be amended from time to time. In general, an amendment to an association's declaration, if adopted pursuant to the procedure set forth in the declaration, will withstand judicial scrutiny as long as the amendment does not violate a public policy.
An amendment that restricts leasing of unit should include some sort of a "grandfather" provision to address the current leases. However, there is no "one size fits all" lease restriction amendment or "grandfather" provision, so this is an issue on which the board needs to consult with an attorney.
Q. I am a condominium board member and would like clarification on a recent situation. Owners have installed bird feeders on the property, and there is currently no rule in place that addresses bird feeders. The board recently met in a "closed" session of a board meeting to discuss having owners remove all bird feeders from the property. The board then voted in the "closed" session and it was decided to require the removal of all bird feeders. Shouldn't this vote have occurred at an "open" board meeting?
A. If the installation of bird feeders is in violation of some provision of the association's declaration, whether or not a specific rule is in place, the board could discuss the violation and remedies in an "executive," or "closed," session portion of a board meeting. However, the vote of the board to require the owners to remove the bird feeders must have been taken at a board meeting or portion thereof open to any unit owner. Failure to do so would be in violation of section 18(a)(9) of the Illinois Condominium Property Act.
Q. Each unit owner in our condominium association has a specific percentage of ownership upon which their monthly assessment fee is based. In past board elections, this percentage was used to weight each owner's vote. This year, the communication from the association states that voting will be on a one equal vote per unit basis, and that votes will not be weighted according to each unit's percentage of ownership. Isn't voting in elections based on each unit's percentage of ownership?
A. In a condominium, voting is generally required to be on a percentage basis, and the percentage vote to which each unit is entitled is the percentage interest of the undivided ownership of the common elements appurtenant thereto. That said, the bylaws can provide for approval by unit owners on the basis of one vote per unit for matters where the Condominium Property Act does not specifically require voting to be based on percentage of ownership.
The act does not require voting in elections to be based on percentage of ownership. Therefore, an association's bylaws can provide that all units have one equal vote in elections for the board, regardless of the unit's percentage of ownership. That is unusual, and most association documents do provide for voting in elections 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.