Municipality does not have to accept private streets
Q. The streets in our association are privately owned, and are quite expensive to maintain and plow of snow. Can an association dedicate its private streets to the local municipality?
A. An association can dedicate its private streets to the municipality, if the municipality agrees. This would make the streets "public." Each municipality's requirements for a street dedication are different. The first step for the association is to discuss the issue with the manager of the municipality. Those municipalities that will accept a dedication of private streets generally require the association to first bring the roads up to the municipality's current road requirements. That can often be cost-prohibitive. In a condominium, unless the declaration provides for a greater percentage, the decision to dedicate a road to a municipality requires the affirmative vote of two-thirds of the owners.
Q. About 90 percent of the units in our condominium association were added into the association when the declaration was recorded in 2007, and the developer retained rights to add additional units into the association. The turnover of control of the association by the developer took place in 2010. The market has improved in the area and the developer wants to add the remaining 10 percent of the units into the association. Does this require approval by the owners? Can the association stop this?
A. The Condominium Property Act permits a developer to reserve the right to add additional property to that which has been submitted to the condominium association. The option to add additional property into the association expires no later than 10 years from the date of recording the declaration. No owner approval to add additional property into the association is required if the developer complies with the requirements of the Condominium Property Act with respect to creating and exercising add-on rights.
Note, too, that the developer has an easement over and on the common elements for the purpose of making improvements on the additional land, and for the purpose of doing what is reasonably necessary and proper in conjunction therewith.
As long as a developer has properly established and exercises add-on rights in accordance with all of the requirements of Section 26 of the Condominium Property Act, the developer may proceed.
Q. An owner in our association pays monthly assessments late, so we assess a late charge. This owner is also a frequent rules violator and has been fined often. As a result, the owner's account statement shows he owes thousands of dollars in late fees and fines, but no assessments. Can we evict the owner for nonpayment of these charges?
A. An Illinois association can utilize the forcible entry and detainer (eviction) suit to collect unpaid assessments and other lawful charges from a delinquent unit owner. However, as a practical matter, it is difficult to convince a judge to enter an order evicting a person from their home when the unpaid balance is comprised entirely (or mostly) of charges that are not assessments.
Associations still have a remedy. A breach of contract suit can be filed against the owner. This would result in a judgment in the amount of the unpaid late fees and fines, just like in an eviction suit. However, the association would have to collect the judgment through, for example, a wage garnishment, rather than through possession of the unit.
The association could also file a lien, but that is a very passive approach. I say that because the filing of a lien does not in and of itself generate payment. The amount of a lien does, however, just at some time in the future. It generally would be paid upon a sale or refinance of the unit by the owner.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. 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.