New law allows gardens on unit owner's property
By David M. Bendoff
Q: I live in a townhouse in a common interest community. Each individually owned townhouse lot has a spacious backyard. Are owners permitted to have a vegetable garden on their lots?
A: The Illinois Vegetable Garden Act, effective Jan. 1, 2022, addresses this issue. That law provides that "any person may cultivate vegetable gardens on their own property." A vegetable garden is defined as "any plot of ground or elevated soil bed on residential property where vegetables, herbs, fruits, flowers, pollinator plants, leafy greens or other edible plants are cultivated."
The act goes on to state it does not prohibit " … regulations and ordinances relating to height, setback, water use, fertilizer use or control of invasive or unlawful species, provided that any such regulation or ordinance does not have the effect of precluding vegetable gardens."
Note further that these vegetable gardens must be for "personal consumption or noncommercial sharing," and not for commercial purposes. In other words, you can grow tomatoes for yourself, and to give away; however, you might not be able to sell the tomatoes at the local farmers market.
Therefore, owners may have a vegetable garden on their individually owed lot consistent with the above. However, an association could adopt regulations consistent with the new law, as long as those regulations do not have the effect of prohibiting vegetable gardens.
Q: The community I live in is made up of numerous individual condominium associations and a master association. The board of the master association is considering purchasing a privately owned golf course located near the community. The board of the master association has said, although it wants community input on the proposed purchase, the decision will be made by the board alone without any approval by the members of the master association. Section 18(a)(8)(v) of Illinois Condominium Property Act provides that assessments for additions and alterations to the common elements or to association-owned property not included in the adopted annual budget, shall be separately assessed and are subject to approval of two-thirds of the total votes of all unit owners. Given this provision in the condominium statute, can the board of the master association purchase this property without an owner vote?
A: Although the members of the master association may be comprised of members of underlying condominium associations, a master association is not governed by Section 18(a)(8)(v) of Illinois Condominium Property Act. That section only applies to a condominium association. Section 18.5 of the Illinois Condominium Property Act governs master associations. Section 18.5 does not address the purchase of land by the master association.
The declaration of covenants and bylaws for the master association needs to be carefully reviewed to determine what, if any, provisions govern this proposed transaction. For example, the governing documents should address the board's authority to purchase and to operate this property, the use of association funds for this purpose, and if there are aspects of the proposed transaction that require approval by the members of the master association.
Q: A vacancy on our condominium board was created when a board member resigned. Can the president of our condominium association fill the vacancy on the board, even on a temporary basis?
A: Unless the declaration or bylaws for the association include some novel language, the president alone does not have the authority to fill a vacancy on the board, even temporarily. The typical declaration mirrors language in the Illinois Condominium Property Act regarding the filling of vacancies on the board. That language authorizes two-thirds of the remaining members of the board to fill a vacancy at a board meeting; subject to owner rights to fill the vacancy. That said, many associations conduct a vote of the owners to fill a vacancy on the board.
• 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.