Clearing guest parking spaces
Q. It is very difficult for our snowplow contractor to 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.
Many municipalities have ordinances that prohibit vehicles from parking on public streets when there is some amount of snowfall (e.g., a 2 inches or more snowfall), and some prohibit parking when snow removal conditions exist. The board can consider adopting a rule and posting signs to this effect (or as to whatever minimum amount is typically set out in the association's snowplow contract), or when any snow removal condition exists, with respect to the guest parking spaces.
Q. My townhouse association is intending to create a policy for the resolution of owner disputes as required by the Illinois Condominium and Common Interest Community Ombudsperson Act. The last sentence of the policy states, "All parties shall abide by the final determination."
If "all parties" (the complaining owner and the board) must abide by the board's "final determination," how can any owner ever utilize the services and benefits of the ombudsperson to resolve a dispute?
A. The "All parties shall abide by the final determination" language would not preclude an owner from exercising rights to make complaints to the ombudsperson under the Illinois Condominium and Common Interest Community Ombudsperson Act.
Owners, in associations required to adopt a written policy for resolving complaints made by unit owners against the association, may begin making complaints to their association after Jan. 1, 2019. Beginning July 1, 2020, provided the legislature has appropriated funds, qualifying unit owners may make complaints to the ombudsperson for assistance in resolving a dispute between a unit owner and an association that involves a violation of the Condominium Property Act or the Common Interest Community Association Act. Importantly, the ombudsperson only assists opposing parties who mutually agree to participate in dispute resolution.
Q. I am a resident of a small condominium association. An amendment to the declaration prohibits leasing of units. Several of the owners who acquired their units after the lease restriction amendment was recorded have voiced their desire to rent their units in the near future. They contend that they can lease their units because, as they claim, "This is their property and they should be able to do with it as they please." Can you please tell us where the association stands on this?
A. Owners who acquire units in associations take subject to its 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 seen by many as harsh, the board would also be able to evict the tenant for leasing the unit in violation of the lease restriction amendment.
If the sentiment of the owners has changed about the leasing restriction, the declaration could be further amended to eliminate the restriction entirely, or to permit some percentage of the units to be leased. The association would need to review the declaration as to the procedure to amend.
• 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.