Condo leasing bans often exclude relatives
Q. I own two homes in our association. One I occupy; the other is occupied by my mother. Management sent a letter to all owners that essentially states, based on an amendment to declaration, all units must be owner-occupied as of Jan. 1, 2020. Is this enforceable?
A. Owners acquire units in associations subject to the recorded covenants in the declaration. If the proper amendment procedure is followed, a declaration could be amended to require that units are owner-occupied, eliminating the ability of owners to lease out their units.
Such amendments frequently include an exception for certain family members, so I would suggest reviewing the actual recorded amendment to determine if such an exception is included.
Q. I live in a townhouse-style condominium. One of my neighbors advised that the driveway in front of my garage is designated as a limited common element for my unit, and allows me to park two vehicles on the driveway. This would be great because I don't have room in my garage to park my cars. How would I confirm this?
A. The declaration of condominium and/or the plat of survey attached to the declaration would identify what portions of the property, if any, are limited common elements - for the use of a specific unit owner. The declaration should also identify the purpose for which such a limited common element could be used. You should review those documents for guidance.
Q. The declaration for our condominium association was recorded in the late 1970s and has never been amended. The declaration includes language that requires approval of a special assessment by at least two-thirds of the unit owners, if it involves a total payment assessed to a unit that is either greater than $300 or five times the unit's most recent common expense assessment calculated on a monthly basis. Is there anything in the Condominium Property Act that addresses this?
A. The language in your declaration reflects language that used to be in the Illinois Condominium Property Act. That language is ridiculous, in that about one-third of the owners could prevent the board from levying a special assessment for necessary maintenance, repair and replacement of the common elements. That puts a board in an impossible situation, in light of its duty to maintain, repair and replace the common elements.
As a result, the Condominium Property Act was amended in the mid 1990s to change how special assessments are levied. Section 18(a)(8) of the Act now generally permits a board to levy a special assessment in any amount.
However, under certain circumstances, unit owners have an opportunity to call a meeting of the association members for the purpose of a vote to reject a special assessment after it is adopted by the board.
In a "nutshell," the board can adopt regular and special assessments in the current year. If the combined total of those assessments does not exceed 15% of total regular and special assessments adopted in the prior year, it is not subject to a possible vote to reject the special assessment.
That is, if any separate assessment adopted by the board would result in the sum of all regular and separate assessments payable in the current year exceeding 115% of the sum of all regular and separate assessments payable during the preceding year, the owners with 20% of the votes of the association have a right to file a petition with the board within a specified number of days of the board's adoption of the special assessment. If the board of a condominium association receives such a petition, it should consult with counsel immediately.
Q. I am president of a small common interest community association. The nominating committee for our association only submitted the names of current members of the board as candidates, and ignored the timely request of an owner to be included as a candidate for the board. Was this proper?
A. In general, an owner who submits a timely response to a solicitation for candidates for the board should be included on the ballot and the association issued proxy.
• 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.