Hot tub parties aggravate neighbors
Q: An owner installed a hot tub in the backyard of their home in our homeowners' association. The owner likes to hold loud parties in the hot tub late into the evening and early hours of the morning. A group of owners have filed a complaint with the association requesting the hot tub be removed. The response from the association is that the hot tub is not in violation of the association's governing documents, and did not require board approval, because it is not a structure. The association referred us to the local police for enforcement of the noise ordinance. Is there something the association should be doing about this?
A: The covenants for most associations include language that prohibits conduct that is noxious or offensive, or that is an annoyance or creates an unreasonable disturbance to other residents, or that is in violation of law.
It is certainly possible that the noise from the hot tub parties, particularly overnight, could violate such a provision, even if the installation of the hot tub itself is not in violation of the covenants. The board could not ignore credible, objective evidence of a violation of such a restriction if you provide it, and appropriate enforcement action should then be taken by the board.
Q: The declaration of covenants for our common interest community association was amended a few years ago to permit the board to establish compensation for board members. I am advised this was done because no one would step up to run for the board. Is it lawful to be compensated to serve on a board of this type?
A: Section 1-25(c) of the Illinois Common Interest Community Association Act provides that the members of the board shall serve without compensation, unless the community instruments indicate otherwise.
The declaration of covenants, as amended, is a "community instrument," under the Act. As such, board members of the association could be compensated in accordance with the amendment to the declaration.
I appreciate why the amendment was put in place here to allow for compensation of board members, as it can be very difficult to attract candidates for the board in some associations. I would be concerned, though, that owners are seeking seats on the board for the wrong reason.
Q: A board member of our condominium sold her unit during the first year of her two-year term. This created a vacancy on the board. The declaration states the board can fill the vacancy, and that the person appointed to fill the vacancy serves for the balance of the unexpired term of the director who he or she succeeds.
One of the owners claims the person appointed by the board in this situation only serves until the next annual meeting of the board. For how long does the person appointed by the board actually serve on the board?
A: Section 18(a)(13) of the Illinois Condominium Property Act addresses the filling of vacancies on the board. It authorizes the remaining members of the board to fill the vacancy by two-thirds vote of the remaining board members during a board meeting. The person appointed to fill the vacancy in this manner serves on the board until the next annual meeting of unit owners.
If there is any time left on the term of the board member who created the vacancy, the remaining term would then be filled by vote of owners at the next annual meeting.
The Illinois Common Interest Community Association Act includes the same language regarding the filling of vacancies on the board.
• 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.