Unit owners deck project requires vote

Posted6/24/2017 6:00 AM

Q. A unit owner in our condominium association has requested permission from the board to expand the size of the deck serving his unit. This deck, along with the decks serving other units, was built by the developer. It is located on the common elements. Can the board approve this request?

A. The Illinois appellate court held in a 1994 decision that a unit owner cannot extend a balcony over a portion of the common elements without the unanimous consent of all of the unit owners in the association. Applied here, the board alone could not approve the owner's request to expand the size of the deck.

There is an abundance of Illinois appellate level case law that addresses a condominium association board's authority to permit an owner to improve the common elements and/or to have the exclusive use of a portion of the common elements. In these cases, even where there was express authority in the association's governing documents and in the Condominium Property Act, courts held that a board did not have the authority to permit an owner to improve or use a portion of the common elements for their exclusive use.

These cases involved, for example, a board's granting the exclusive use of a common element parking space to an individual owner, and the exclusive use of a portion of a common element hallway adjacent to the owner's unit (even though the latter is seemingly expressly permitted by the Condominium Property Act!).

The line of cases relied on a principle that granting a condominium unit owner the exclusive right to use a portion of the common elements (owned by all of the unit owners) resulted in the dilution of the percentage of ownership in the common elements of all other owners. These cases have all held that these actions required the unanimous approval of all the owners in the association, and not just the board.

Note, too, that there may be circumstances where the board can permit an owner to use the common elements for a limited duration that would not run afoul of these cases.

Q. Our condominium association meetings are held in the lobby of our building because we don't have other good space for this purpose. A small unit in the association is for sale, at a below-market price. It would be perfect for meetings or for other functions. Can the association purchase the unit?

A. The association can purchase units, as long as it obtains the necessary approval of the unit owners. Section 18(b)(13) of the Illinois Condominium Property Act permits an association to purchase or sell units with the affirmative vote of not less than two-thirds of the votes of unit owners. Some association declarations require a higher percentage of owners to approve, such as 75 percent, and that would be the threshold. The vote would occur at a meeting duly called for that purpose. Owners could vote in person or by proxy.

Q. An owner in our condominium owes a substantial amount of unpaid assessments to the association. He has requested an assessment status letter for the upcoming closing of the sale of the unit. Can the board withhold the letter until the account is current?

A. The Condominium Property Act requires the association to furnish an owner with a statement of account, regardless of whether the account is current, upon 10 days' notice from the owner. The only condition that the board can impose before issuing the statement of account is that the owner pays a reasonable fee. The statement of account would set forth the amount of any unpaid assessments or other charges due and owing from such owner.

Absent something very unusual, the unpaid sums set forth in the statement would be paid to the association from the sale proceeds of the closing of the unit.

• 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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