Board must follow rules regarding rules violations
Q. When an owner in our condominium association violates a rule, the board sends a letter of violation to the owner advising that the board has levied a fine. One of our board members contends that the owner has to be given a hearing before the fine can be levied. What is the proper procedure to levy a fine for a rule violation?
A. The Illinois Condominium Property Act provides that the board can levy a fine for violation of the association’s rules or declaration and bylaws. However, a fine can only be levied by the board after the owner has been provided written notice of the violation and after the owner has been provided an opportunity for a hearing. After the hearing (if the board finds that the violation did occur), or if the owner does not appear for or request a hearing, the board can levy the fine. The board should not first levy a fine and then give the owner a right to “appeal” the fine; that would violate the procedural due process required under the Act.
Q. I am a unit owner in a townhouse style condominium complex. It is my understanding that the walkways and stoops for each unit are considered common elements under the declaration. The declaration provides that the association is responsible for maintaining them. If a person falls on a stoop/sidewalk, and is injured, is the association liable?
A. The association has exposure to liability if the person fell as the result of some breach of duty to maintain the common element stoop or sidewalk. That is, the association is not an insurer and is not strictly liable for all injuries suffered by a person who falls on the common elements. In general, an association would have exposure to liability if the association knew or should have known about the condition of the common elements that could cause injury, and if the association failed to take appropriate or timely action to repair the common element. These are questions of fact that are decided on a case-by-case basis if a matter goes to trial.
Periodic site inspections by the board and/or property manager can be an important tool to identify common element defects and to initiate the timely repair process to diminish exposure to liability for personal injury.
Q. Our association’s new management company has requested a copy of the lease if any home is being rented. Our home is currently being rented, but there is no written lease. We had issues with our former management company when we explained our situation and why we don’t have a written lease. Now, I am reluctant to inform the new management company since it is likely they will demand a lease that doesn’t exist. According to the letter I received, management states that the association’s governing documents require owners to provide a copy of any current lease. I plan to ignore their request for a copy of the lease. Am I within my rights?
A. The Illinois Condominium Property Act and almost all community association declarations that I have reviewed specifically state that, if a home is rented, then the association is entitled to a copy of the written lease. If the rental arrangement is a verbal lease, then a Memorandum of Lease (a specific legal document) is typically required. Ignoring the association’s request for a copy of the written lease (or a Memorandum of Lease) exposes you to the enforcement procedures that may be set out in the association’s governing documents. In a condominium, failure to provide the lease or the memorandum of the lease permits the association to terminate the lease and even evict your tenant.
• 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.