Do residents deserve a warning before violation notice, fine?
Q. I received a notice of violation of a rule from my condominium association. After I had a hearing with the board, a fine was imposed for the violation. Was the board required to give me a warning before issuing a notice of violation or fining me?
A. The board is not required to give an owner a warning before issuing a notice of violation and/or levying a fine for a violation of the association’s governing documents. In order to levy a fine, a board is required to issue a written notice of violation and give the accused an opportunity for a hearing with the board.
Some association shave imposed a mandatory warning requirement in their rules before being able to issue a notice of violation. I do not think this is a good practice. Rather, a board could, depending on the facts and circumstances of a particular matter, decide to issue a warning instead of issuing a notice of violation. Or, if the board finds that a violation occurred after following the violation enforcement procedure, it could nonetheless waive the fine.
Q. We have a single elevator in our condominium building. Moving is only allowed during the hours of 9 a.m. to 5 p.m. on weekdays, as most residents are not home at that time, and the elevator needs to be reserved in advance. Having an elevator used for moving at any other time or on the weekends would create havoc for all the folks who rely on it to go about daily business. A fine for a violation is currently $400. Nonetheless, we have a growing number of people who ignore these rules, and use the elevator after hours or on weekends to move. The word is that these residents consider the fine to be another moving expense. Anything the board can do about this?
A. While a fine needs to be “reasonable,” the prospect of a fine should also serve as a deterrent. The board should increase the fine for a violation of these moving rules, and it should include an additional per hour fine that the elevator is used.
Q. Can a condominium unit owner install sound recording/eavesdropping devices on their unit’s interior walls and ceiling to record sounds and noise from the adjoining condominium units?
A. Initially, I assume that the owner wants to install the equipment because they want to document a claimed violation of noise rules by a resident of a neighboring unit. Otherwise, it’s just plain “creepy.”
Persons have a reasonable expectation of privacy within their unit. Therefore, recordings from a unit that can pick up conversations in another unit can arguably violate the Illinois criminal statute regarding eavesdropping. That statute makes it a crime to record a private conversation without the consent of all parties.
The better approach to memorialize claimed noise violations from another unit is to retain the services of a sound engineer. The sound engineer can use equipment to measure and record sound levels, without recording actual conversations. The engineer can then produce a report that compares the measured sound levels with acceptable standards.
Clarification: The Dec. 15, 2023, column commented on serving alcoholic beverages at an event in an association’s clubhouse. The Illinois Dram Shop Act governs persons “licensed under the laws of this State or of another state to sell alcoholic beverages.” The Illinois Dram Shop Act would not typically cover private events in an association’s clubhouse. That means that the limits of liability under the Illinois Dram Shop Act would not be applicable. However, that does not absolve the person or potentially the association from liability for injuries caused by intoxicated guests at a social event, under social host theories of recovery. The association should speak with its insurance agent/broker to advise as to the type of insurance and minimum coverage that should be required of hosts of social events at a clubhouse where alcoholic beverages will be served, and as to what coverage the association should have as well.
• 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.