Heated carport leads to heated dispute
Q: I own a condominium that is located on the second floor of the building above an open first-floor carport that provides parking for the residents of the association. Pipes serving the units in the association are located in the carport ceiling, and there are heaters located on the carport ceiling. These heaters are meant to keep the water pipes from freezing and possibly breaking in winter; however, they also serve to "insulate" our units from the cold.
The board has decided to only turn the ceiling heaters on if the outside temperature is below freezing, rather than the prior policy of turning them on when the outside temperature first drops below 40. As the result of this change in policy, the cost to heat our units has increased substantially. Can the association be required to revert to the old policy and turn on the carport ceiling heaters at 40 degrees?
A: I appreciate the impact of the carport ceiling heaters on your unit. However, given their purpose, the board would seemingly have discretion to determine at what temperature the carport ceiling heaters would be activated; so long as the pipes are protected from freezing.
That said, some sort of investigation should be undertaken to determine the adequacy of the insulation between the carport and your unit. If the insulation is not adequate, action could be considered to increase the insulation.
Q: One of the owners in our association has moved off the property without providing any forwarding address. The owner pays assessments by checks that do not include an address. We have had a "skip trace" performed, and the only address that comes up for this person is the unit in our association. The association needs to issue a notice of a serious violation to the owner. How can we do that if we cannot locate the owner?
A: The typical declaration includes language that notice is to be sent to owners at their unit in the association, unless the owner provides another address where notices are to be issued. If the owner here has not provided any other address than the unit where notices are to be sent, the notice of violation can and should be sent to the owner's unit at the association.
However, if this matter escalates to litigation, the owner will need to be personally served, so additional effort will be required to locate this owner at that time.
Q: Two owners in our condominium association want to swap their limited common element parking spaces between their units. As a result, the parking spaces would be closer to their respective units. The board of directors of the condominium understands that this transfer requires an amendment to the declaration of condominium. However, the owners of the two units involved in the transfer claim the amendment only gets recorded against their units, and not against all the units. What is correct?
A: Section 26 of the Illinois Condominium Property Act governs the issue of transfers of limited common elements between units. Each transfer of a limited common element is made by an amendment to the declaration of condominium. Amendments to the declaration are recorded against al of the units in the condominium; not just the units involved in the transfer of a limited common element.
As an aside, many owners incorrectly think a transfer of a limited common element, like a parking space, between units is accomplished by way of a deed or of just a bill of sale. That is not correct. A transfer of a limited common element between units requires an amendment to the declaration.
• 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.