A: As long as the revised budget was approved by the Board and notification was provided to unit owners before the month when the increase commenced, unit owners are required to pay the increased assessment in full. Assuming the Association rules and regulations call for a late fee for assessments not paid in full when due, unit owners would be liable for the late fee and there is no remedy to successfully seek reimbursement.

Q: I am a unit owner in a condominium association and our governing documents contain a weight limit for dogs. I understand that the doctrine of reasonable accommodation per the Federal Fair Housing Amendments Act would invalidate a dog weight for a unit owner granted a reasonable accommodation due to a disability; however, the president of our board trains therapy dogs and is currently training a golden retriever over the weight limit. The president claims the doctrine of reasonable accommodation applies because the dog is being trained as a therapy dog. Is this true?

A: The doctrine of reasonable accommodation pursuant to the Federal Fair Housing Amendments Act allows a resident living in a condominium an exception to animal restrictions in the Association’s governing documents such as no pet restrictions or weight limits. The law guarantees persons in housing equal opportunity to housing. However, to be entitled to a reasonable accommodation, and thus an exception from the weight limit, the person (president of the board in this case) must have a qualified disability under applicable federal law and be prescribed the assistance animal to ameliorate the effects of their disability. The doctrine of reasonable accommodation does not apply to animals alone because they may be used as a therapy animal.

Q: I am a disabled unit owner in a condominium association who needs accessible parking and it is my understanding the Illinois legislature is considering legislation to address the issue of accessible parking spaces in condominium associations. What is the status of the legislation? 

A: On May 24, 2024, the Illinois legislature approved legislation amending the Condominium Act to impose new requirements for condo associations related to accessible parking. If the approved legislation is either signed by Governor Pritzker or not vetoed by Governor Pritzker by July 23, 2024, the new law shall become effective on January 1, 2025.

In sum, the proposed amendment to the Condominium Act imposes two new requirements on condominium boards. The first requirement is to adopt a policy to reasonably accommodate a unit owner who is a person with a disability who requires accessible parking. The second requirement requires condominium boards to make reasonable efforts to facilitate a resolution between unit owners to provide accessible parking in situations where the association does not own or control parking that meets the accessible parking needs of a disabled unit owner.

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A: From a legal standpoint, pursuant to section 18.4(a) of the Condominium Act, the condominium board has the authority to maintain, repair and replace existing common elements with only a board vote. The board may use reserve funds for that purpose. Board members must vote to approve contracts in an open board meeting, which unit owners may attend and listen.

From a best-practice standpoint, it is common for condominium boards to provide information to the unit owners about major capital projects, including the scope, design and timelines. Soliciting unit owner opinions is not so common because of the volume of different opinions that may be received, but allowing unit owners to ask questions about the projects is an appropriate step.

Q: I am a unit owner in a self-managed condominium association. Our condominium board is raising the budget, and thus our assessments, more than 7%, which our bylaws prohibit without unit owner approval. Is our bylaws restriction enforceable?

A: A bylaws restriction limiting a condominium budget increase to no more than 7% unless unit owners approve it is unenforceable because it’s not consistent with the Condominium Act and is therefore void, according to the provisions of that act. Section 18(a)(8) of the Condominium Act allows a condominium board to increase the sum of regular and special assessments over the previous year by 15% without unit owner approval or rejection rights. Only if the budget increase is more than 15% do the unit owners possess a right to reject the budget. That procedure requires 20% of the unit ownership to sign a petition delivered to the board within 21 days of the adoption of the budget, and unless a majority of the total unit ownership rejects the budget at a meeting called by the board within 30 days of the date of delivery of the petition, the budget is ratified.

Q: I am on the board of a small condominium association. Do you have any advice on how to handle an unruly board member who at times intimidates and bullies other board members?

A: All board members should act civilly and in good faith to each other. When situations arise where a board member does not show civility toward other board members, the first step is for professional management (if any) and/or the board president to speak with the board member privately and explain how their behavior is making others feel. Be specific with examples.

If the unruly board member doesn’t cooperate, the board could adopt a code of conduct to set expectations for how board members should act. As a last step, if a board member is continuously abusive, either the board or 20% of the unit ownership can call a unit owner meeting to remove the director from the board. Most governing instruments require two-thirds unit owner approval to remove a director from the board.

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A: Pursuant to Section 18(a)(1) of the Condominium Act, the only criteria to be eligible to serve as a member of a condominium board is merely unit ownership. Occupancy is not a factor.

However, Section 18(a)(1) was changed a few years ago to allow existing condominium associations to vote on whether to amend their condominium declaration and require the majority of the board, or any other agreed-upon percentage, be unit owners who occupy their unit as their primary residence. That same legislation also said that such an amendment may not require that more than a simple majority of the board be unit owners who occupy their unit as a principal residence.

This means that even in the event of an amendment requiring a certain number of board positions being reserved for unit owners that occupy their units as a principal residence, a certain number of board seats are still available to unit owners who do not occupy their units as a principal residence. Thus, investor unit owners cannot be barred from serving on the board.

Q: I am a unit owner in a six-unit condominium association in Chicago. One of my fellow unit owners purchased two additional units in the association without sharing his plans with the unit owners and now owns just over 50% of the unit ownership. The remaining three independent unit owners are afraid he may attempt to sell the building without our approval. Can he do so?

A: Pursuant to section 13-72-085 of the City of Chicago Condominium Ordinance, 85% of the unit owners of a condominium association must vote in favor of the sale of the property for the measure to pass. Therefore, a single individual who owns just over 50% of the ownership may not force the sale of the building on the other unit owners without their approval because 85% approval is required. Nonetheless, the bulk unit owner could successfully control the majority of the seats on the board of directors after the next election and make decisions that would affect the spending of association funds and could present an offer to the other unit owners for a possible sale of the building for their vote.

Q: My husband and I, both retired, are considering purchasing a condominium unit in Chicago as a second home to be near our daughter. We have been single-family homeowners for many years and have never purchased a property governed by a community association. What do we need to know when purchasing this type of property as opposed to purchasing another single-family home?

A: Besides the size difference between a condo and a single-family home in most cases, there are significant differences in the ownership structure. It would be a good idea to talk with a real estate agent to explain the differences as well as an attorney, who would also handle the closing of the transaction. There are also many online resources and trade organizations that provide information about condo living.

The most significant difference is that a single-family homeowner can do with their property as they please. However, with a condo association a unit owner is legally bound to all the restrictions and obligations described in a condominium declaration. For example, the declaration will detail limits on property use and owner obligations such as paying assessments, as well as specifics on common-area repairs and replacements.

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A. A recent federal court ruling has cast doubt over the future of the Corporate Transparency Act. The case, captioned National Small Business United, d/b/a National Small Business Association, et al. v. Janet Yellen, et al., Case No. 5:22-cv-01448-LCB (N.D. Ala.), was filed by the National Small Business Association, on behalf of its members. In the 53-page decision, a U.S. District Court in the Northern District of Alabama ruled that the act exceeds Congress’s authority and is thus unconstitutional.

The ruling is significant but does not spell the end of the Corporate Transparency Act altogether, at least not yet. First, the ruling is of limited applicability in that it only suspends enforcement of the act against the plaintiff in the case; it does not apply broadly to entities that were not a party to the case. Second, it appears likely that the ruling will be appealed and that additional challenges to the act will be filed. Third, it is possible that the Corporate Transparency Act will be amended by Congress to address the issues raised by the recent ruling.

Clarity regarding the fate of the act, including the need for condominium and community associations and co-ops to comply with its reporting requirements, is expected in the coming months ahead of the Jan. 1, 2025, reporting deadline. For now, the Corporate Transparency Act and its reporting requirements remain in effect (except for the plaintiff in the aforementioned case). As such, condominium, community association and co-op boards should (i) be aware of this development in the law; and (ii) barring any changes, continue to work with their accounting, management and legal professionals to prepare for the reporting deadline.

Q. I am a unit owner in a large condominium association. Our board holds executive sessions approximately every two weeks. What is a condominium board legally allowed to discuss in closed session board meetings and what type of minutes, if any, is the board required to keep?

A. On July 15, 2016, Gov. Bruce Rauner signed a bill that became Public Act 99-0567. The new law amended the Condominium Property and the Illinois Common Interest Community Association Act to allow board members of both condominium associations and common interest community associations to meet and discuss certain association business outside of open board meetings (i.e., closed session board meetings).

The amendment to the two statutes, which became effective on Jan. 1, 2017, greatly enhanced the ability of boards to work effectively and efficiently outside of the confines of a board meeting open to the unit owners. Board members may discuss the following topics in a closed session board meeting: (i) pending or probable litigation; (ii) third party contracts or information regarding appointment, employment, engagement or dismissal of any employee, independent contractor, agent or any other provider of goods and services; (iii) to interview any potential employee, independent contractor, agent or any other provider of goods and services; (iv) violations of rules and regulations of the association; (v) discussion of any association members’ unpaid share of common expenses; or (vi) consultation with the association’s legal counsel.

Per subsequent case law, Boucher v. 111 E. Chestnut Condominium Association, among several holdings, the Illinois Appellate Court held that condominium boards must keep minutes of closed session meetings including who was present and the legal basis/reason that allowed for the closed session board meeting. The discussions that occur in closed session are not required (or recommended) to be described in the closed session minutes.

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A: As a general rule of law, when snow naturally falls, a property owner will not be liable when injury occurs; however, by contrast, when snow is disturbed by the conduct of someone such as snow shoveling or plowing, potential liability does exist if the conduct was the proximate cause of an injury and there was a breach of a duty by the individual disturbing the snow.

Premises liability is very fact specific. Generally, if there is a delay in snow shoveling or plowing and an individual slips on freshly fallen, undisturbed snow, it does not automatically create premises liability.

Q: I am an owner in a small condominium association with three board members. We recently had an election and the new board member elected was so abusive, the other two board members resigned shortly after the election. At the next board meeting, the remaining board member appointed two individuals to fill the vacancies of the resigned board members without advance notice to the unit owners or an election. Is this proper?

A: Section 18(a)(13) of the Condominium Act sets forth the process in which a condominium board may fill vacancies on the board. The section states that a board vacancy may be filled by the 2/3 vote of the remaining board members who may appoint unit owners to serve until the next annual election. Alternatively, if 20% of the unit owners file a petition to fill the vacancies for the remaining balance of the term, a unit owner meeting shall be held within 30 days thereafter to fill the vacancies for the unexpired portion of the resigned board members terms.

Therefore, in a three-person board where two directors resigned, the single remaining director is 100% of the remaining board members, and thus, has the authority to appoint two unit owners to fill the vacancies until the next annual meeting unless 20% of the unit owners submit a petition to fill the vacancy for the remaining balance of the term of the signed board members.

Q: I am on the board of a small, new-construction condominium association. We are currently negotiating with the developer of the project for construction defects and it is my understanding that recent Illinois case law may be advantageous to community associations that have claims against developers. Is that accurate?

A: On November 30,  2023, the Illinois Supreme Court unanimously upended decades of Illinois law regarding coverage under commercial general liability policies, which is a positive development for community associations that have claims against a developer of a community association, because such claims against the developer may now result in insurance coverage for the developer, and thus, a deep pocket to pay potential damages for construction defects.

The Illinois Supreme Court held in Acuity v. M/I Homes of Chicago, LLC that the “your work” exception under commercial general liability policies did not prevent a contractor’s coverage for unexpected and unintended property damages caused by the insured’s faulty workmanship. Previously, Illinois followed a relatively narrow interpretation that prevented such coverage.

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A: There is no statutory provision, or case law, that deals with how a condominium board of directors chooses to list the names on an annual election ballot. Given the broad basis a board is granted to administer the association pursuant to its bylaws and Section 18.4(a) of the Condominium Act, the decision on how to list the names on a ballot is solely within the discretion of the board. Candidly, alphabetical order is the most common and recommended method to avoid the inference of preferences.

Section 18(a)(17) of the Condominium Act prohibits condominium boards from expressing a preference in favor of any candidate in an annual election.

Q: I am a unit owner in a large condominium association. Our board of directors has five board positions, but for the current election, only one person is running for the two available board vacancies. What happens if no other unit owners run for the board and there are less than five board members as a result?

A: The bylaws of every community association contains the number of board positions for the association. It is always recommended and encouraged that a sufficient number of unit owners to run for the board for the available positions; however, if an insufficient number of unit owners agree to run or serve on the board, resulting in less than a full-serving board, the board should still continue to operate until additional unit owners can be enticed to serve.

Any time there is a board vacancy in between annual elections, pursuant to Section 18(a)(12) of the Condominium Act, the board may fill an open board vacancy with a 2/3 vote of the board and that person shall serve until the next annual meeting.

Q: During board election season, are unit owners entitled to campaign if they choose to run for the board of directors? And if so, can unit owners set up a table in the lobby or must they campaign by a different method?

A: Every year, condominium associations hold an annual meeting to elect unit owners to serve on the board. As with all elections, some form of campaigning is a part of the process.

Organized condominium associations will solicit candidates to fill out candidate information forms, which are mailed to all unit owners as the primary method for candidates to introduce themselves. Some community associations additionally hold meet-the-candidate events.

Unless the board of a particular condominium association allows campaigning in the common elements such as the lobby, which is uncommon, campaigning in the lobby is usually prohibited by most condominium asssociations as it is disruptive to the unit owners. As such, for board candidates who desire to get out additional information beyond the candidate information form regarding their candidacy, those unit ownes are enttitled under Section 19 of the Condominium Act to request the name and address of all unit owners in the association and mail their additional campaign materials to unit owners.

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A: Unless the governing documents require the creation of a landscaping committee composed of owners to make decisions related to landscaping in the association, the board of directors of a community association has the authority to make all decisions regarding the maintenance, repair and replacement of common area landscaping, and if the declaration so states, landscaping on the lots themselves.

The board of directors also has the authority to enter into contracts to accomplish the maintenance, repair and replacement of the landscaping. The board’s authority is found in the townhome declaration and bylaws and/or the Common Interest Community Association Act if the act is applicable to the community association, which might not be the case as there are exemptions for some small associations in Section 1-75 of the act.

Q: I am on the board of a small condominium association. A realtor representing a unit owner selling their unit has requested certain financial information on the association including the amount of money in reserves. Do we have to give that information to the realtor?

A: As a preliminary matter, any unit owner, including a unit owner selling their unit, is entitled to inspect, and make copies of, the books and records of account of the association per Section 19 of the Condominium Act. Thus, while a realtor is not entitled to inspect or receive copies of books and records of the association, their client is entitled to that information and in theory could share it with their realtor.

Additionally, section 22.1(a)(4) of the Condominium Act requires a condominium association to make available for inspection to a prospective purchaser, upon demand, the status and amount of any reserve fund for replacements and the portion of the reserve fund earmarked for a specific project by the board, if any. Therefore, providing the amount of reserves to a realtor marketing a unit for sale is reasonable because prospective purchasers will ask for that information and are entitled to it in any case per applicable law.

Q: I’m on the board of directors of a townhome association and our bylaws state the exteriors of townhomes shall be painted every five years. Given the improvement in paint quality since the bylaws were recorded decades ago, the board of directors feels repainting every five years is not necessary and would like to extend the time period before repainting is required. Can the bylaws be revised by a board vote, or is owner approval needed to make a change?

A: A covenant or restriction in the bylaws can only be changed by amending the bylaws. The bylaws will contain an amendment provision that governs the process and owner approval required to make such a change. Customarily, bylaws for a homeowners association requires at least 2/3 owner approval.

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A: Both Illinois caselaw and section 18.4(a) of the Condominium Act grant condominium boards quite broad powers to administer the common elements as the board sees fit, which absolutely includes decorating decisions. As such, while it is a common practice for boards to seek unit owner input for major decorating decisions such as major lobby or hallway redecorating projects, the board is free to remove ivy and hallway tables in the common elements and dispose of the decorations in either the garbage or donate them as the board sees fit.

Q: I am a unit owner in a condominium association that has many elderly unit owners. Due to the deteriorating mental faculties of some of the elderly residents, the community has experienced a steady stream of mishap incidents such as elderly residents leaving the water running, or leaving a gas stove on, and forgetting to turn them off. Our property manager says there’s nothing the association can do to force these elderly owners to seek assistance for their medical needs. What can the association do in these situations?

A: Condominium association boards are not granted the authority to make decisions regarding the medical needs of residents and/or force residents to seek assistance for their living arrangements. However, the association may discuss the issues with elderly owners exhibiting diminished mental faculties that are leading to property damage and safety hazards.

First, unit owners are liable for damages that arise out of the use and operation of their unit per Condominium Act and condominium declarations, and subject to fines for violative conduct, but that does not address the prevention of damages or safety hazards with an individual with diminishing mental faculties. Second, the board and management should lead with empathy and tactfully reach out to the owner/resident, and their immediate family or emergency contact person, to discuss the board’s concerns about safety issues and damage issues due to their forgetfulness. Many times, loved ones are instrumental in helping elderly owners with diminishing mental faculties coordinate the care they need, which may involve hiring appropriate assistance for the unit and sometimes, relocating to an appropriate facility.

Q: I am a board member of a townhome association. Our townhome front entries have two cement steps, however, there are no handrails for walking support. There is now a homeowner who wants to add a handrail allegedly due to a medical condition. What are the legal considerations for the architectural committee to be aware of in the situation, for instance, does the Americans with Disabilities Act (ADA) apply?

A: Besides the typical architectural committee standards that may be applicable in the community, the architectural committee must be aware that the Federal Fair Housing Act (FHA) applies in situations of housing and handicapped individuals where a properly documented disabled owner needs a modification to their home exterior or common area to ameliorate the effects of their disability. The homeowners association is required to allow certain modifications to the premises to ameliorate the effects of a disability; however, the association would absolutely have input into the decision and materials to be used in the modification and the homeowner is responsible for all the costs of the modification.

A common misconception is that the ADA applies in these situations, but the ADA only applies to places of public accommodation, not purely residential properties. The FHA is the federal statute applicable to reasonable accommodation requests in homeowners associations.

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A. Under most condominium declarations and section 4.1 of the Condominium Act, windows are deemed limited common elements. Most declarations do grant the board the authority to require unit owners to maintain, repair or replace limited common elements associated with their unit, at their cost, and to provide lien waivers from the contractor to ensure full payment was made. That same provision also usually provides that if that work is not done, the board may perform the requested work and then bill the condo owner.

The governing documents of each association need to be reviewed to confirm whether such common language exists in a particular condominium declaration.

Q. I am the treasurer of my condominium association. We have a unit owner who has accumulated numerous fines over the years but refuses to pay. Those smaller fines have now added up to something more significant. What are our options to collect?

A. Condo owners must pay all appropriate fines. For an inexpensive, but passive approach to collection, condominium associations can record a lien against a unit for unpaid common expenses. If the condo owner wanted to sell or refinance the unit, the owner would have to pay the unpaid fees for the association to release the lien. Legal fees for the preparation and recording (and release) of the lien may be assessed to the unit owner’s assessment account.

For an active approach to collection, pursuant to the Illinois code of civil procedure and section 9.2 of the Condominium Act, after a 30-day demand, condominium associations may file a lawsuit against unit owners to collect their unpaid share of the common expenses and the association is entitled to recover its attorneys’ fees and costs for enforcing its collection rights.

Q. I am the president of a small condominium association. It is my understanding that Illinois case law prohibits condominium board members from emailing each other to discuss board business. However, we have several board members that refuse to comply with the law. Emails are constantly being sent among some directors. Are there any consequences to the board members for these continuing violations?

A. Illinois case law is clear that a quorum of the board (three out of five board members on a five-person board, for example) may not discuss board business outside a properly called board meeting unless the association’s statute clearly states when and if that is an option. That includes emails. Board members who refuse to comply with the law may find themselves in breach of their fiduciary duties, which could result in a lawsuit leading to a possible court order that they cease and desist in violating the law. They may also be found liable for monetary and/or legal fees.

It is a best practice for board members to refuse to engage in email discussions outside of a properly called board meeting. If board members wish to convey information to other board members, it should be done via email blind carbon copy, or BCC, so there’s no possibility of a discussion chain among several board members.

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A. Section 18.4 (l) of the Condominium Act authorizes a condominium board to levy a reasonable fine for a violation of the declaration, bylaws, or rules and regulations after notice to the unit owner and giving the unit owner an opportunity to be heard.

As far as a fine amount that may be levied, the Condominium Act and applicable Illinois case law require that the fine must be reasonable, but there are no parameters in the law of what is deemed a reasonable fine amount; it depends on the circumstances and what a majority of the board subjectively determines is reasonable. If a fine amount is not objectively reasonable, there’s always a possibility a court may reduce the amount of the fine if challenged by a unit owner.

Illinois law does not require an appeals process for a fine levied by a condominium board. The decision of whether to reconsider a fine is solely within the discretion of the board.

Q. The bylaws to my condominium association require the board to provide unit owners with an itemized annual accounting on or before April 1 of each calendar year. I have requested that accounting for several years in a row and have not received the accounting. What are my options to see a reconciliation of my association’s yearly finances?

A. Section 18(a)(7) of the Condominium Act expressly requires a condominium board to annually supply an itemized accounting of the common expenses for the preceding year actually incurred or paid, together with an indication of which portions were for reserves, capital, expenditures or repairs or payment of real estate taxes and with a tabulation of the amounts collected pursuant to the budget or assessment, and showing the net excess or deficit of income over expenditures plus reserves. A board that refuses to provide such an annual itemized accounting would be in breach of their fiduciary duties.

Unit owners also have the right under section 19(a)(9) of the Condominium Act to inspect the books and records for the association’s current and 10 immediately preceding fiscal years, including, but not limited to itemized and detailed records of all receipts, expenditures and accounts. If a board improperly denies access to the books and records allowed pursuant to Section 19, a unit owner who prevails in an enforcement action to compel the examination of those records is entitled to recover reasonable attorneys’ fees and costs from the association.

Q. I am a unit owner in a large suburban condominium association. The notice of board meetings for my association does not include a copy of the meeting agenda; we only receive the agenda the night of the board meeting. I have been asking for a copy of the agenda prior to board meetings for a long time because I would like to know what topics will be discussed at the meeting, but my request is always rejected. Does the Condominium Act require a board meeting agenda be sent to unit owners prior to a board meeting?

A. There is no requirement in the Condominium Act or applicable Illinois case law that requires a condominium board to provide a copy of a meeting agenda prior to a board meeting. If the condominium association’s governing documents requires an agenda be sent to unit owners in advance, that would mean that it must do so.

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