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Can a board curtail cannabis consumption in a condo

Q. The increased smoking of marijuana in units in our condominium is resulting in complaints from neighbors. Can you please clarify the rights of a condominium to regulate cannabis use at the association?

A. The condominium instruments of an association may prohibit or limit the smoking of cannabis within a unit owner’s unit. This means the restriction would need to be included in the association’s declaration or bylaws. If not in the original condominium instruments, the condominium instruments could be amended. “Smoking” means the inhalation of smoke caused by the combustion of cannabis.

Do note that the condominium instruments and rules and regulations may not otherwise restrict the consumption of cannabis by any other method within a unit owner’s unit, or the limited common elements. For example, the use of “gummies” can’t be restricted on limited common element balcony/patio.

However, the condominium instruments and rules and regulations may restrict any form of consumption of cannabis on the common elements.

This is set out in Section 33 of the Illinois Condominium Property Act.

Q. The board of our condominium received a proposal from its attorney to file a real estate tax appeal for all of the units in the association. The board thinks it is a great idea. Does the board need to get owner approval to move forward?

A. The board does not need owner approval to authorize the tax appeal. This is addressed in Section 10(c) of the Illinois Condominium Property Act.

Upon authorization by a two-thirds vote of the members of the board of managers, the board of managers acting on behalf of all unit owners has the power to seek relief from or in connection with the assessment or levy of real estate taxes. Further, the board can charge and collect all expenses incurred in connection therewith from owners as a common expense. These real estate tax appeals are typically done on a contingent fee basis, so there really isn’t a downside to proceed.

Note that other types of homeowner associations can also use a group real estate tax appeal.

Q. There is some confusion about filling a vacancy on the board of our condominium association. The board president thinks they can fill the vacancy, and then the board can ratify that decision at a board meeting. Is this proper procedure?

A. The bylaws of the condominium must include the method of filling vacancies on the board. This must include authority for the remaining members of the board to fill the vacancy by two-thirds vote at a board meeting until the next annual meeting of unit owners. At the next annual meeting, if there is any time left of the term of the person who created the vacancy, the owners would vote to fill that remaining term.

Do note that after the board fills a vacancy on the board, owners holding 20% of the votes of the association can file a petition to the board requesting a meeting of the unit owners to fill the vacancy for the balance of the term.

Q. An owner in our association recently died. Multiple persons came forward claiming to be relatives of the deceased owner and demanded access to the unit, and demanded that the association provide them with the unit key the association maintains for emergencies and lockouts. They each contacted the association and stated not to let the other one in the unit! The board has not provided a key to the unit to anyone as a result. What is the association supposed to do in this situation?

A. In general, if an owner dies with a will, the executor of the will would have control of the assets, and could be provided a key and access to the unit. If an owner dies without a will, an administrator of the estate needs to be appointed, who would then control the assets of the estate, and who could be provided a key and access to the unit.

So, a person claiming to represent the estate of the deceased owner needs to demonstrate that they are either the executor of the will or administrator of the estate of the deceased owner, or authorized by them, through appropriate documentation. A “self-proclamation” is not enough evidence of authority to deal with the assets of the deceased owner.

• 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.

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