Owners of leased units can not delegate liability to their tenants

Q: The declaration for our condominium requires owners to maintain their units in good order and repair. The grout in a shower of a unit has not been maintained, causing water to leak into a unit below. The association made a demand on the owner to repair the shower in his unit. The owner sent the board a copy of the lease for his unit that says the tenant is responsible to maintain the unit during the duration of the lease, and the owner instructed the board to contact the tenant. Can an owner do this?

A: This is addressed by Section 18(q) of the Illinois Condominium Property Act. That section states "a unit owner may not assign, delegate, transfer, surrender or avoid the duties, responsibilities and liabilities of a unit owner under this act, the condominium instruments, or the rules and regulations of the association; and such an attempted assignment, delegation, transfer, surrender or avoidance shall be deemed void."

The owner's attempt to delegate responsibility for maintenance of the unit to his tenant, as between the unit owner and the association, is not valid. The association can pursue the owner for failure to maintain the unit here.

Q: We are a self-managed condominium association. Board members use their personal vehicles to run all sorts of errands for the association. Can board members be reimbursed for their mileage expense?

A: Board members can absolutely be reimbursed for mileage expense incurred in carrying out their duties and responsibilities as board members. Board members can also be reimbursed for other reasonable expenses incurred in carrying out their duties and responsibilities as board members.

Q: A group of owners has banned together and stopped paying their assessments to our association in protest of a decision to postpone certain common area work. Is this permitted?

A: In Illinois, an owner cannot withhold assessments in protest of a board decision. The association can file suit to collect the unpaid assessments, and the owners' unhappiness with the board's decision on the project should not be a valid defense in a collection action.

Q: Leasing of units in our condominium is becoming increasingly popular. We have found many of the people who violate the association's declaration or rules are tenants. Can the board adopt a rule requiring owners to include a rider to their leases that makes their tenants subject to the declaration and rules?

A: The board can adopt such a rule. However, the rule and rider are not necessary to obligate tenants to comply with association's declaration and rules. Section 18(n)(i) of the Illinois Condominium Property Act provides that provisions of the "act, the declaration, bylaws, other condominium instruments, and rules and regulations that relate to the use of the individual unit or the common elements shall be applicable to any person leasing a unit and shall be deemed to be incorporated in any lease executed or renewed on or after Aug. 30, 1984."

Q: Our condominium was developed as an "add-on" condominium. Several phases of the additional land described in the condominium declaration have been developed and added into the condominium. There is a portion of the additional land that has not been developed or added into the condominium. This remaining parcel has become unsightly with weeds and with litter that blows into this parcel. Can the association force the developer to build on this last part of the additional land?

A: A developer of a condominium in Illinois can include language in the condominium declaration that describes additional land that can be added into the condominium. However, a developer is not required to add all or any part of the additional land into the condominium.

• 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.