Owners must give access to common element repairs in their units

Q. I received a notice from the board of my condominium association that its plumbing contractor needs access to my unit in order to inspect for a source of a water leak. The board suspects it is from a pipe. The board has threatened to fine me if I do not comply. It's my unit, so why do I have to let the association into my unit?

A. In a condominium, common element pipes often run through a unit, or are located outside the unit boundaries but are only accessible from a unit. The association is often responsible for maintaining, repairing and replacing these pipes.

Recognizing this, Section 18.4(j) of the Illinois Condominium Property Act grants the board the right of "access to each unit from time to time as may be necessary for the maintenance, repair or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to other units."

This language is broad enough to require an owner to provide the board access to a unit to inspect for a suspected water leak. Failure to provide requested access is a violation of the Act. The board may levy a fine, after providing notice of the violation and providing the owner an opportunity for a hearing, against an owner who fails to provide properly requested access to their unit.

Q. Our condominium association is comprised of more than 200 units. A contractor performing work on the common elements has not been paid, as there is a dispute between the association and the contractor as to the quality of the work. The association was served with a notice of claim for lien by the contractor. The board has been advised that it must now distribute this notice of claim for lien to all unit owners. That is incredibly burdensome. Do we really have to do this?

A. The short answer is yes. Section 18.4(r) of the Illinois Condominium Property Act requires the board to accept service of a notice of claim for purposes of the Mechanics Lien Act on behalf of each respective member of the Unit Owners' Association with respect to improvements performed pursuant to any contract entered into by the board if the property contains more than eight units.

That section further requires the board to distribute the notice to the unit owners within seven days of the acceptance of the service by the board of managers. The service is then deemed be effective as if each individual unit owner had been served individually with notice.

This is yet another reason why associations should adopt rules that permit owners to consent to receive notice by email. It's much easier to hit "send" once that to stuff and mail 200 copies of the notice.

Q. I own two side-by-side condominium units. I want to open up the common element wall between the two units to create one large living space. The board of managers has said I cannot do this. I don't see anything in our governing documents that prohibits it. Can the board prevent me from doing this?

A. This issue is governed by Section 29 of the Illinois Condominium Property Act. A unit owner who owns two or more units has the right, subject to such reasonable limitations as the condominium instruments may impose, to remove or otherwise alter any intervening partition, so long as the action does not weaken, impair or endanger any common element or unit.

The owner contemplating such a project needs to carefully review the declaration and bylaws for the association to determine what limitations they may impose.

The unit owner must also notify the board of managers of the nature of the removal or alteration at least 10 days prior to commencing work. The board can then evaluate whether these criteria are met.

As long as these criteria are met, a unit owner may remove the wall between the units to create one large living space.

• 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.