Smoking can be prohibited in units

 
Posted6/8/2019 7:00 AM

Q. I live in a condominium, and I am a cigarette smoker and occasional cigar smoker. The board of the association is circulating an amendment to the declaration that would prohibit smoking in units. I feel the board is trying to get me to move. Can the declaration really be amended to ban smoking in our condos?

A. The declaration of condominium can be amended to prohibit smoking within the individual units. As long as the amendment is adopted in the manner described in the association's declaration, it should be enforceable, as such an amendment does not violate public policy.

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To the contrary, public policy, as evidenced by the increasing number laws of the state of Illinois (and nationwide), supports limitations on smoking. To address secondhand tobacco smoke that migrates from a unit to other units or to the common elements, declaration amendments to prohibit smoking of tobacco throughout an association's property, including within the individual units, are increasingly popular.

Many of these amendments also expressly prohibit smoking of marijuana. We will have to wait and see if these amendments become more popular if and when the proposed legalization of recreational use of cannabis is approved in Illinois.

Q. The owner of a large parcel next to our single-family homeowner's association is seeking to have the parcel rezoned, from single-family homes to a mixed use with condominiums and retail. It is a very controversial issue in our community, and within our association. My informal poll indicates more owners in our association are opposed to, rather than in favor of, the proposal. The concerns relate to traffic and the negative impact on the value of our homes.

The purposes for which association funds can be used seems limited in our declaration and bylaws. Can the board use funds of the association to retain an attorney to fight the proposal?

                                                                                                                                                                                                                       
 

A. The typical covenants for an association indicate that a purpose of the association is to maintain the values of the property within the association. If such a covenant is present in your association's declaration, the use of association funds to oppose a nearby land development project that would negatively impact the value of homes in the association is defensible.

That said, board members should be confident that their opposition to the project is supported by the residents of the association.

Q. The annual meeting for our owners to elect members to the board is being planned. The draft of the candidate solicitation form to be issued by the board inquires as to the position for which a candidate is running. The draft ballot includes this as well. Is this correct?

A. Candidates to the board run for a position on the board. Candidates do not run for a particular officer position on the board.

Said differently, owners vote for board members, and not the officers of the board. Board members themselves elect board officers.

Once the board is elected by the owners, board members meet and vote among themselves to decide who (among the board members) will be the president, secretary and treasurer. Often, this board meeting is scheduled, and for which notice is given, to take place immediately after the annual meeting of the owners.

A candidate form could inquire as to what officer position, if any, for which the candidate may have particular qualifications. This could be useful information for both the owners and the board members. However, the form should not ask for what position the candidate is running.

• 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.

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