Association documents must outline how to pay for window repairs

Q: The windows in our condominium association are reaching the end of their useful life and need to be replaced. One of the board members contends the windows are limited common elements and that owners, not the association, are responsible for the replacement cost. Our declaration is completely silent on this. The board member claims this is all set out in the condominium act. Is this accurate?

A: This is a common misunderstanding. Section 4.1(a)(5) of the Illinois Condominium Property Act provides that, except to the extent provided by the declaration of condominium, windows in perimeter walls that serve a unit are limited common elements of that unit. Key to the issue here is that Section 9(e) of this law provides that declaration of condominium may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned.

So, while the windows may be limited common elements, the cost of replacement of the windows can only be charged back to the individual units if the specific authorizing language to do so is in the declaration of condominium.

That is, there is no statutory authority alone to charge the window replacement expense back to the individual owners. The authority must be set forth in the association's declaration of condominium, pursuant to Section 9(e) of the Act.

Q: I have lived in several different condominium associations, and I am on the board of my current association. My fellow board members claim we are not a condominium association, and that we are a common interest community association. However, the association's declaration uses all sorts of terms that were in the declarations for the condominium associations I lived in, like, "common elements" and "limited common elements." Further, each unit has a "percentage of ownership." Aren't we a condominium?

A: Unless there is language in the declaration that expressly submits the property to the provisions of the Illinois Condominium Property Act, the property is not a condominium. Occasionally I have seen a declaration like the one you describe. The language you describe can create confusion, particularly as to the appropriate governing statute for the association, and concerning issues such as the type of insurance to be maintained by owners and the association.

Q: What sort of regulations can our condominium association adopt to address issues with marijuana use on the property?

A: This is addressed in the Illinois Condominium Property Act. The declaration of condominium can prohibit or limit the smoking of cannabis within a unit owner's unit. Cannabis includes marijuana. "Smoking" is defined in the Cannabis Regulation and Tax Act as the inhalation of smoke caused by the combustion of cannabis. "Combustion" is typically the burning of something with a flame.

Note that neither the declaration of condominium nor the rules and regulations can otherwise restrict the consumption of cannabis by any other method within a unit owner's unit, or the limited common elements. Examples of consumption by any other method would include "edibles." However, the declaration of condominium or the rules and regulations may restrict any form of consumption of cannabis on the general common elements.

A number of associations are amending their declaration of condominium to prohibit the smoking of cannabis in the individual units and other locations within the condominium property. Others are adopting rules regarding cannabis smoking on the common elements and/or limited common elements, and other methods of consumption on the common elements.

This all does raise a relevant issue as to where "vaping" falls in all of this.

• 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.