Guest parking spaces need to be cleared of snow, too

Q. Our snowplow contractor claims they cannot remove snow from the common element guest parking spaces in our condominium. Can the board of our condominium association prohibit parking in guest parking during the winter months?

A. The board of directors of the association has a fiduciary duty to maintain the common elements. This duty would include snow removal in the common element guest parking. While the board cannot realistically prohibit parking in the guest parking spaces during winter, it could prohibit parking in those spaces during such times as the snowplow contractor needs access.

Q. This is about Section 18.4 (a) of the Illinois Condominium Property Act. Will you clarify this section? My interpretation is that any common element expenditure that is over 5% of the annual budget would be subject to a unit owner vote.

A. Not every common element expenditure that is over 5% of the annual budget is subject to a unit owner vote. That said, certain common element expenditures over 5% of the annual budget may be subject to a vote of the unit owners.

Section 18.4(a) of the Condominium Property Act provides that expenditures to replace common elements or facilities do not automatically require owner approval. Further, replacement of the common elements may result in an improvement over the original quality of such elements or facilities.

It’s the cost of the “improvement over the original quality of such elements or facilities” being replaced that may be subject to owner approval. If the “improvement” results in a proposed expenditure exceeding 5% of the annual budget, then (and only then) the owners have an opportunity to call a meeting to vote on the expenditure. Such an expenditure would trigger the ability of the owners to invoke a procedure to call a meeting of the owners to vote on the expenditure. Note though that if the improvement is mandated by law or is an emergency the owners would not have an opportunity to vote.

If the expenditure (that results in an improvement over the original quality of such elements or facilities) triggers the owner vote opportunity, owners with 20% of the votes of the association can deliver a petition to the board within 14 days of the board action to approve the expenditure. The petition would request a meeting of the owners to vote on the expenditure. If such a petition is received, the board would have to call a meeting of the unit owners within 30 days of the date of delivery of the petition to consider the expenditure. However, unless a majority of the total votes of the unit owners are cast at the meeting to reject the expenditure, it is ratified.

Q. An amendment to our declaration prohibits leasing of units. Several owners who acquired their units after the lease restriction amendment was recorded want to rent their units in the near future. They claim it’s a violation of their property rights and they should be able to lease. Can you please tell us where the association stands on this?

A. Owners who acquire units in associations are subject to the covenants. If the lease restriction amendment was properly adopted, the owners in question are subject to the leasing restriction. Leasing of a unit in violation of the amendment would permit the association to take legal action against the defaulting owner to stop their violation of the leasing restriction. Although this may seem harsh, the board would also be able to evict the tenant for leasing the unit in violation of the lease restriction amendment.

• Matthew Moodhe 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.