Who pays for upkeep of association's dog run?
Q: The declaration of condominium for our association permits dogs, and our property includes a large dog run for pet owners to use. The declaration describes the dog run as a limited common element assigned for the use of owners of units with dogs. Recently, the owners with dogs, including me, were sent a bill for certain maintenance costs to the dog run. Shouldn't this cost be included in our monthly assessments?
A: If the declaration for your association provides, then the cost of expenditures for the limited common elements can be assessed to only those units to which the limited common elements are assigned. This is described in Section 9(e) of the Illinois Condominium Property Act.
I find the situation you describe as rather novel. That is, the units that are assigned the use of the limited common element dog run is fluid and depends on whether there is a dog in the unit. That requires some serious administrative record keeping, as well as a way to limit the use of the dog run to only the owners of units with a dog. I suppose access could be limited with a key fob lock on the dog run.
Q: The board of our condominium association filed a construction defects lawsuit against the developer of the association. The case concerns a defective roof. The association does not own the roof; it is owned collectively by the individual owners. Wouldn't the individual owners need to be named as plaintiffs in the suit?
A: This issue is addressed in Section 9.1(b) of the Illinois Condominium Property Act. That section provides that "the board of managers shall have standing and capacity to act in a representative capacity in relation to matters involving the common elements or more than one unit, on behalf of the unit owners, as their interests may appear." Therefore, the board may bring the suit in its name, on behalf of the owners. The individual owners would not be named as plaintiffs/parties to the suit.
Q: A contractor for the association refuses to correct poorly performed work at our condominium association, and it will cost six figures to correct. The board wants to file suit against the contractor. However, one of the board members noted that the declaration for our condominium requires the board to obtain the approval of two-thirds of the owners before filing a suit. We couldn't get that many owners to agree on what the day of the week is. Do we really need to get this owner approval?
A: The board does not need to obtain owner approval to proceed with the suit here. Any provision in a condominium instrument is void, deemed against public policy and ineffective, if it limits or restricts the rights of the board of managers -- including the institution of any action in court or a demand for a trial by jury. Condominium instruments can't require the prior consent of unit owners in order for the board of managers to take any legal action. This is governed by Section 18.9(a)(i) of the Illinois Condominium Property Act.
Q: When must a restriction on leasing of units require an amendment to the declaration adopted by owners versus when it can be accomplished by a rule adopted by the board?
A: The oversimplified answer is that if the association's declaration allows or restricts leasing of units, a change on leasing must be accomplished by way of an amendment to the declaration. In the rare circumstance in which a declaration is silent on the issue of leasing of units, the board can restrict leasing of units by rule, as long as the restriction is reasonable.
• 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.