Hardwood flooring project creates rift within association

Q: The contractor for an owner in our association started to install hardwood flooring in a unit, even though our declaration specifically prohibits hardwood flooring. The declaration prohibits hardwood flooring (and other hard surfaces) in the units because of the sound transmission issues that result from the original construction of the building. A cease-and-desist letter was issued to the owner, and the floor installation work stopped. Then, the contractor's attorney contacted the board to discuss support for the owner's desire to install this particular hardwood flooring. Is the board required to discuss this matter with the owner's contractor or the contractor's attorney?

A: The board is not required to discuss this matter with the owner's contractor or the contractor's attorney. The association's relationship is with the owner, and not the owner's contractor. The board should communicate with the owner or the owner's attorney. Further, if the declaration prohibits hardwood flooring, there isn't anything to discuss or negotiate. That said, the only exception would be based on a request by the owner for a "reasonable accommodation" under the Federal Fair Housing Act Amendments of 1988.

Q: I am pretty sure I read something in one of your columns about this, but I hope you can clarify. The declaration for our condominium describes certain portions of the property as limited common element. This includes patios and balconies that adjoin a unit. The declaration says the association is responsible for maintenance, repair and replacement of the limited common elements. A new unit owner in our association says the cost of this limited common element work can be charged back to the unit owner served by the limited common element. However, our declaration does not state anything like this. The owner says this is allowed under the Illinois Condominium Property Act. Is the owner correct?

A: The owner is not correct. Section 9(e) of the Illinois Condominium Property Act states that "(t)he condominium instruments 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."

This language does not by itself allow the association to charge back the cost of work on the limited common elements to the unit owner. That is, there is no automatic statutory right to charge back the cost of this work to the owner.

Rather, this section of the act allows the condominium declaration to include language that would allow the association to charge back the cost of work on the limited common elements to the unit owner. So, the language authorizing the chargeback of limited common element work must be in the association's declaration.

If the declaration does not include express language allowing the association to charge back the cost of work on the limited common elements to the unit owner, the cost would be the responsibility of the association.

Do note that the declaration could be amended, with requisite owner approval, to add language allowed by Section 9(e) of the Illinois Condominium Property Act to allow the charge back.

Q: The declaration and bylaws for our association were amended. Thereafter, the board issued a letter to all owners advising that the amendment had been approved and recorded. Is the board required to send a recorded copy of the amendment to all owners?

A: The board is not required to send a recorded copy of the amendment to the declaration and bylaws to all owners as a matter of course. However, an owner who makes a written request for a copy of the amendment is entitled to receive a recorded copy of the amendment. The association may charge the owner the actual cost of copying the amendment.

Some associations automatically mail every owner a copy of a recorded amendment, at great expense to the association. The better approach may be to advise owners that the amendment has been recorded, and to include information as to how a copy can be obtained.

• 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.