Board has a right to restrict marijuana odors
Q: Our condominium association is already dealing with issues and complaints associated with the smoking of lawful recreational marijuana in units. Due to a lot of apathy, the board isn't confident it can muster the required owner support to amend the declaration to prohibit smoking of marijuana in units. Is there another approach the board can pursue?
A: The typical declaration includes a covenant that prohibits "noxious or offensive conduct" or conduct that is "an annoyance to other occupants." Secondhand marijuana smoke that migrates into other units or the common elements can rise to the level of violating such a provision.
The board can levy a fine after providing an opportunity for a hearing, if the migration of the secondhand marijuana smoke violates such language in the declaration. Additional legal remedies are available if the problem continues.
Short of amending the declaration, there are also rules that the board can adopt, without owner approval, to address secondhand marijuana smoke without actually prohibiting smoking in the individual units. I'll discuss some of those in a future column.
Q: When I purchased my condominium unit, I was assigned three parking spaces referred to as limited common elements. I do not need all three of the parking spaces, and one of my neighbors would like to acquire one. Can I sell my limited common element parking space to another owner?
A: Unless specifically prohibited by the declaration, owners are permitted to transfer limited common elements between themselves. This transaction must be reflected in an amendment to the association's declaration of condominium. The amendment needs to be approved by the owners involved in the transaction and not by the ownership in general. The amendment should be prepared by the association's counsel and not by the owners.
Q: I own a condominium unit. I want to put a dividing wall in one of the rooms to create another room. The board has advised me that I am prohibited from doing this under the Condominium Property Act, as it is an impermissible "partition." Can I do this?
A: The Condominium Property Act prohibits partition of the common elements; however, that is a legal concept not applicable to the situation you describe. Notably, if the modification you propose affects the common elements, it would typically require board approval. The association's governing documents need to be reviewed in this regard as well as any local ordinances that may govern the issue.
Q: Can you give me a down and dirty explanation as to how real estate taxes are determined for my individual condominium unit?
A: In general, the county assessor determines the value of the entire condominium property and multiplies each unit's percentage of ownership by such value to determine the assessed valuation for the individual units. Do note that the board of the association can retain counsel to seek a reduction of the assessed valuation of the units in the association. If successful, the real estate taxes for the units would be lower than what they would otherwise be.
Q: I have attended numerous seminars concerning changes to the Illinois Condominium Property Act. The provisions of our association's declaration conflict with many of these provisions or don't include these changes. Is there a process to amend the declaration to conform to changes to the act?
A: Yes. Section 27(b) of the act does provide a procedure whereby the board, without owner approval, can amend the declaration to bring it into conformity with this law. The Illinois Common Interest Community Association Act includes a similar provision for those types of associations. Updating an association's declaration to comply with the law from time to time will reduce the likelihood of action that conflicts with or is contrary to the law.
• 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.