Owner must maintain lot even if undeveloped

Q. I live in a common interest community association of detached single-family homes. The lot next to my home is a vacant lot that is always filled with overgrown weeds and some amounts of trash that blows there and gets caught up in the weeds. Are the empty lots governed by the same association bylaws that I am? Can the association force this lot owner to cut their grass and maintain the property?

A. All of the lots in your association should be subject to the same covenants and restrictions and rules. If there is a restriction that requires owners to maintain their lots, and to keep grass mowed and free of weeds, then it would apply equally to a developed lot or a vacant lot. The association can enforce the restriction through fines. If fines don't persuade the owner to comply, legal proceedings could be initiated to force the owner to maintain his or her lot. The governing documents for some associations permit the association to perform this work and charge the cost back to the offending owner. This usually requires the board to first give written notice to the owner and a deadline for compliance.

Q. Our association adopted an energy policy statement under the Illinois Homeowners' Energy Policy Statement Act. One of the board members understands the policy must also be recorded with the county recorder of deeds. Is that correct?

A. The Illinois Homeowners' Energy Policy Statement Act provides that an association that is required to adopt an energy policy statement, must also include the energy policy statement in its declaration of condominium/covenants. The declaration of condominium/covenants is a document recorded with the county recorder of deeds. Literally read, associations that are required to adopt an energy policy statement are going to have to amend their declaration of condominium/covenants, as applicable, to incorporate the energy policy statement.

The amendment to the declaration would be recorded in the office of the recorder of deeds. If the association is governed by the Condominium Property Act or the Common Interest Community Association Act, an amendment to the declaration to conform to law, as this would be, can be adopted by the board without unit owner approval.

Q. I am on the board of my association. We have been considering several amendments to our declaration. However, while the board members want to proceed, we don't know owner attitudes about these amendments. We don't want to spend money on an attorney to draft the necessary amendment documents if the project is not going to have owner support. Any ideas?

A. The board should consider taking a written poll of the owners. The poll would describe each of the proposals and ask the owners to respond as to whether they are in favor of each proposed amendment. The poll should be clear that it is a nonbinding advisory poll and, based on the results, the board will decide whether to have an actual amendment document prepared for owner approval.

Even if the poll yields positive responses, the actual amendment should be drafted to permit owners to vote on each proposed amendment separately, rather than a "thumbs-up" or "thumbs-down" on the entire package of proposed amendments.

Poll responses are generally pretty low. To encourage a response, the association should include a stamped and self-addressed return envelope. And for those associations so inclined, a poll can be taken by some sort of electronic means to simplify the ability for an owner to respond.

• 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.