How a board can change bylaws to update carpet requirement

Q. I am wondering what would need to be done to change the bylaws of a condominium association. The association’s bylaws were written back in 1980. At that time carpeting was required in most areas of each unit.

Over the past few years, many owners have replaced carpet with some kind of laminate type flooring.

The board has fined owners who have installed the laminate, and the fine continues to accrue for each day the laminate remains in the unit. I think the bylaws need to be changed since the times and trends are very different now. Is this something that can be done?

A. Initially, the board is acting appropriately in enforcing the covenant that requires carpet. I won’t address that any further, but rather focus here on your question about amending the bylaws.

Section 27(a) of the Illinois Condominium Property Act provides that the condominium instruments (which includes the bylaws) shall be amended upon the affirmative vote of ⅔ of those voting or upon the majority specified by the condominium instruments, provided that in no event shall the condominium instruments require more than a three-quarters vote of all unit owners; and with the approval of, or notice to, any mortgagees or other lienholders of record, if required under the provisions of the condominium instruments.

The bylaws for your association need to be reviewed to see what percentages is required to amend the bylaws.

A covenant that requires carpet in units, or at least in specified portions of units, is not uncommon. The purpose of this covenant is to limit sound transmission between units. There may have been advances in technology over the last 40 years that have produced underlayment that significantly reduces sound transmission. That would be something the board would need to investigate before considering an amendment to allow laminate floors in lieu of carpet.

Q. I recently read your article on the Daily Herald's website titled “State changes condo board residency requirements.” From what I understand, the Illinois Condominium Property Act was amended to permit an association to amend their bylaws and require that a majority of board members occupy their unit as their primary residence but not more than a majority.

If an association’s bylaws already state that all of the board members must occupy their unit as their primary residence, can the association continue to require this or at some point would this need to be amended to coincide with the amended Act’s residency requirements?

A. It was always my opinion that a condominium board member residency requirement in a declaration or bylaws violated multiple Sections of the Illinois Condominium Property Act. Addressing this issue was a purpose of the amendment to Section 18(a)(1) of the Act that was effective Jan. 1, 2022. As amended, that section now states in relevant part that “(a) declaration first submitting property to the provisions of this Act … or an amendment to the condominium instruments adopted in accordance with Section 27 after the effective date of this amendatory Act … may provide that a majority of the board of managers, or such lesser number as may be specified in the declaration, must be comprised of unit owners occupying their unit as their primary residence; provided that the condominium instruments may not require that more than a majority of the board shall be comprised of unit owners who occupy their unit as their principal residence.”

Therefore, a provision in a condominium instrument recorded before Jan. 1, 2022, that requires all board members to reside in their unit would not be valid. The condominium instruments would need to be amended to require that a majority (or some lesser number) of the board members reside in their unit as their primary residence.

• 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.