Owners might have right to keep sunshade
Q: We own a condominium unit that faces west. More than 10 years ago, my husband and I approached the then board president and requested permission to install a sunshade on the exterior of the unit. The president gave us verbal permission, and we installed the shade. In 2019, the board filed a lawsuit against us, claiming we did not obtain written permission from the board to install the sunshade, and the board wants the sunshade removed. Is there some law that protects us here?
A: Initially, I cannot count the number of times over the years that an owner claims they received verbal approval from a single board member for something that requires approval of the board at a board meeting.
The take-away from your inquiry is that owners need to seek and obtain written approval from the board in these situations. Relying on supposed verbal approval of a single board member, when written approval of the association board is required, can lead to the unfortunate circumstances within which you find yourselves.
That said, I trust you are being defended by an attorney here, and you are not defending yourselves. Depending on exactly when the sunshade was installed, the statute of limitations for the association to have brought the suit could have expired. Failing that, there could be equitable defenses that can be asserted on your behalf, like laches (unreasonable delay in bringing a claim that results in prejudice to you) or waiver (acquiescence to a breach of a restrictive covenant), to try and defeat the association's claim.
These are issues you should explore with your attorney.
Q: I live in a condominium. Certain repairs I need to make in my unit require my contractor to access portions below my floor from the unit immediately below mine. The owner of the unit below me said he won't allow my contractor the required access. The association says it cannot help me here.
Do I have any way to require the owner of the neighboring unit to provide me the required access to his unit so I can have repairs performed in my unit?
A: Notably, under the Illinois Condominium Property Act, a condominium association has a right of access to units to perform common element work. However, the Act does not provide similar authority to permit a condominium owner access to another unit to perform repairs for his or her residence.
That said, there is an Illinois statute that may provide some relief to you. The Entry on Adjoining Land to Accomplish Repairs Act provides that if repair and maintenance of a single-family residence cannot be reasonably accomplished without entering into the adjoining land, and if the owner of the adjoining property refuses to permit entry, then the owner of the single-family residence may bring an action in the circuit court to compel the owner of the adjoining land to permit access for the purpose of repair and maintenance. Single-family residences include real estate submitted to the provisions of the Condominium Property Act and containing units used as a single-family residences.
Most people want to avoid litigation. Most often, this litigation can be avoided by showing the owner of the adjoining land the statute. Of course, if you and the neighbor come to an agreement, the terms of the agreement should be memorialized in a written document. The agreement would provide the terms of the arrangement and offer protections to the neighbor against damage to their adjoining unit.
If a suit is filed, the court would prescribe the conditions of the entry and would determine the amount of damages to be paid by you to the owner of the adjoining unit.
• 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.