Condo boards can terminate leases for repeated violations

Q. A unit in our condominium association is leased by an owner to a person who has a long history of ignoring and violating the rules. The board has levied fines that the owner pays, but the violations continue. The unit owner has ignored the board’s requests that the owner address these ongoing problems with the tenant. The violations affect other residents. Are there any remedies available to the board other than the fines?

A. The board can terminate the lease between the owner and the tenant. This is permitted for any violation by the tenant of the association’s declaration, bylaws, or rules by the tenant. The lease is terminated by the issuance of a 10-day notice of termination. The notice must meet very specific requirements, so the board should consult with an attorney. I generally suggest that the board issue a notice of violation and provide an opportunity for a hearing before taking steps to terminate the lease.

If the tenant fails or refuses to vacate the unit within 10 days, the board can then file a forcible entry and detainer (eviction) lawsuit against the tenant. The board can request the court to require the owner to reimburse the association for the attorney’s fees it incurs. Note that this remedy should be reserved for serious or repeated violations, as a court might not be inclined to order the eviction of a tenant for what the court perceives as a relatively minor infraction. As with all remedies, they should be in proportion to the violation.

Q. Our condominium association may end the year with an operating account deficit. What can the board do to make up this shortfall?

A. The board needs to review the declaration for the association to determine if it specifically addresses how to handle the deficit.

However, Section 9(c) (5) the Illinois Condominium Property Act addresses, among other matters, operating account deficits. It provides that if the fiscal year ends in a deficit, then to the extent there are no contrary provisions in the declaration and bylaws, the board has the discretion to address the deficit by incorporating it into the budget for the following year.

Q: The declaration for our condominium provides that the balconies, patios and terraces are limited common elements. It goes on to state that owners, not the association, are responsible for maintenance, repair and replacement of the limited common elements. Is that permitted?

A: Section 18.4(a) of the Illinois Condominium Property Act provides that “the powers and duties of the board of managers shall include, but shall not be limited to, the following: To provide for the operation, care, upkeep, maintenance, replacement and improvement of the common elements.” Limited common elements are a portion of the common elements, per Section 2(s) of the Act. Section 9(e) of the Act states that the “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.” There may be an issue with governing documents like yours that provide that unit owners are responsible for actually performing maintenance, repair and replacement of the limited common elements (as opposed to permitting the board to charge owners for the cost of such work performed by the association), given the above language in the Condominium Property Act. However, this issue has not been addressed in the appellate court.

• 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.