Master Associations and Community Associations
What does Section 20 of the Condominium Property act really mean? It says:
A."Sec. 20. Exemption from rules of property. It is expressly provided that the rule of property known as the rule against perpetuities and the rule of property known as the rule restricting unreasonable restraints on alienation shall not be applied to defeat any of the provisions of this Act."
Condominium associations and master associations are legal in Illinois and they cannot be defeated by either of a couple of real estate laws/principles that might otherwise apply.
A master association is defined as a non-condominium association that is empowered by a condominium association declaration to exercise powers delegated by the condominium association for the benefit of the unit owners. In large phased development communities, there are often a number of separate condominium associations tied together with a master association that performs a variety of functions on behalf of each condominium association and usually including exterior, landscaping, and road maintenance and operation of recreational facilities.
What is a common-interest community?
A common interest community is defined as real estate that is not a condominium or a cooperative, which is administered by an association and in which the owners are obligated to pay maintenance assessments according to a recorded declaration. In other words, it is a "homeowners' association."
What is a cooperative apartment?
A cooperative is real estate owned by a corporation and in which the shareholders or members of the corporation are entitled to lease apartments in the building. Only a shareholder may lease an apartment. The shareholders may transfer their shares in their corporation (plus the right to lease the apartment) to any other person. Cooperatives were, in effect, the first form of condominium ownership in that it enabled individuals to control and possess individual apartments instead of the underlying land. Condominiums represent a significant improvement over cooperatives because it is easy to take mortgage loans out on the individual units. Cooperatives often only can get financing by taking a mortgage on the entire building. Cooperatives are not common in Illinois although there still are a few operating in older communities. In some States, such as New York, this form of ownership continues to thrive.
How does a condominium association differ from these?
A. A condominium association is real estate submitted to the provisions of the Illinois Condominium Property Act. The unit owners own their individual units plus a percentage interest in the common elements (the building itself and the land). The condominium association itself does not own land. A common-interest homeowners' association is usually set up where the association actually owns the common area parcels and the owners each own a Lot (the actual land) adjacent to the common areas. Party wall agreements are imposed for buildings that extend over more than one Lot. A cooperative apartment is very much like a condominium except that the "owners" are shareholders of a corporation that owns the building and leases the units to them.
A. A townhome is a term generally referring to the style of a project/building; it has nothing to do with the form of ownership. Townhomes are often condominiums. Learning about the form of ownership is generally an integral part of the purchase process; a purchaser of a home should ascertain whether it is a part of an association of any kind (condominium, master and/or homeowners). No matter whether the home is apartment-styled, conjoined (townhome-style) or single family in appearance, the legal form of ownership influences all aspects of life at the property. The governing documents of the association (whether condominium or master/homeowners) were recorded prior to the first closing at the development. Generally, such governing documents not only contain specifics about rights and obligations, but they include the right for the board to later adopt rules and regulations further refining governance matters. In the case of condominiums, the Condominium Property Act grafts further rights and restrictions (and controls over contrary provisions in governing documents). In the case of new master associations and those established after the mid-eighties, Section 18.5 of the Condominium Property Act also governs; this is true, too, of those older associations later adopting that Section as additional governance at their properties.
Unit Ownership Description and Boundaries
A. The condominium form of ownership is a relatively recent development in real estate law. It enables people to buy, sell, inherit, or otherwise convey an apartment unit within a larger parcel of real estate. The condominium declaration creates the units from the entire parcel of the property. The portions of the property that are not individual units are common elements owned by all of the unit owners as tenants in common according to their percentage interests as defined in the declaration. Typically, units constitute the air space dimensions of an apartment while the rest of the building and grounds are part of the common elements.
What are the boundaries of my unit?
A.The plat attached to the declaration specifies the boundaries of the unit. Typically the unit will be the space between the unfinished surfaces of the walls and of the ceiling and floor. In addition, interior non-structural walls, pipes, flues, conduits, and other internal installations that serve only the one unit are considered to be part of the unit. Therefore the actual shape of the unit may be a box-type structure with various pipes, flues, and other objects attached to it.
Does the board have the authority to regulate the use of my unit?
A.Since the owners have exclusive control only over their air space, it is necessary to give the board broad authority to regulate conduct in units which may cause a nuisance. The board's authority is limited as the board is allowed only act to act in terms of what would reasonably advance the interests of the association. The board is not entitled to interfere with the private lives of the unit owners.
Declarations, Bylaws, and Plats
A. It certainly may be. Presuming that the brother does not reside with the President and presuming that the brother is not also on the board, nothing bars this situation. There may be an appearance of a conflict of interest, but brothers, by adulthood, often do not have the same economic “pot” that spouses or parents and children are presumed to share. One would hope that the President recused himself from the voting, although even that is not necessarily required. Of course, your governing documents may have additional restrictions with respect to conflicts of interest, over and above those described in Section 18(a)(16) of the Condominium Property Act. Additionally, in a non-condominium situation, it is the governing documents and the general Not-For-Profit Corporation Act and law derived thereunder (and likely section 18.5(c) through (h) of the Condo Act) that would control. Again, consideration such as whether there is a joint economic pot between the brothers and whether the President voted with respect to his brother’s employment will come into play.
A.It is possible to do so, but unlikely because of the difficulty in carrying out the procedure. The unit owners own the common elements (all portions of the property except the individual units) as tenants in common. Their rights are subject to the recorded declaration which creates the condominium, establishes each unit's undivided percentage interest in the common elements, and governs the unit owner's use of the property. It would be necessary to amend the declaration in order to remove a building from the association. However, because this amendment would alter the percentage interest in the common elements and have a significant impact on the owners' property rights, the approval of all of the unit owners would be required (and possibly all of the mortgage lenders also). In addition, the new declaration to govern the new association also would have to be adopted by all of the unit owners of the new building. We have found that obtaining unanimous unit owner approval for anything is virtually impossible. If the unit owners did manage to do so, extreme care would have to be taken to avoid legal problems, such as maintenance issues between the buildings, insurance coverage problems, title and title insurance issues, and accounting questions, all of which will arise out of a division of an association.
A .State law will determine the answer to this question. Generally, however, privileged communications between an attorney and his/her entity clients are made with the "control group" only. The control group is generally considered to be the board of directors. Non-board member unit owners are not entitled to see privileged communications; were they to see them, the privilege may be considered to be breached. FOIA is irrelevant in the association context.
A. In the absence of any other procedure to govern the community association, then Robert's Rules must be followed to the extent that they are applicable. The problem with Robert's Rules is that they are made for parliamentary bodies where the members have a say in the decisions and operation of the association. The Rules are far too technical and complicated for everyday use in board meetings. The best thing is for the board to come up with its own rules (preferably amending the bylaws to include them). This web site contains "Goldberg's Rules of Order" which sets forth a simple and reasonable procedure to use.
A. Assuming that the president is also a member of the board of directors of the association (and nearly all community associations provide for officers to also be directors), then the president must be entitled to fully speak on and vote on any matter that comes before the board, just as every other board member. Directors have a fiduciary duty to the association to make decisions in good faith on behalf of the association.
Does the Board have to read previous minutes at the board meeting?
A.The board minutes are not official until the board itself approves them. Thus, the approval of previous minutes is essential. Instead of reading the minutes, most boards simply distribute them to the board members and then have discussion of changes, if any, requested by the board members.
What has to be included in Board minutes?
A.The minutes should reflect only the actual business being conducted by the board. Every matter that comes before the board should be addressed in some way, either to take a certain action, to refrain from taking an action, or to table the matter and deal with it in the future. Normally, the minutes should identify who is present, the beginning and ending times of the meeting, confirm that notice was sent and a quorum were present, and detail each and every motion considered by the board including the identity of the movant, the identity of the person seconding the motion, and the outcome. General discussion does not belong in the minutes unless the board wishes to make a specific record of the facts and arguments upon which its decision was based.
Are the unit owners entitled to receive copies of the minutes?
A.Yes. The unit owners are entitled to receive a copy of the minutes of all meetings upon request. The board could charge the cost of copying to the unit owner. It is a good idea to wait until the board has approved the minutes before distributing them. It is not necessary to distribute copies to all unit owners but only provide them to those who request them. However, some associations find that their membership becomes more aware and involved when the minutes are mailed out. Note that the board may meet in executive (closed) session for discussion of certain topics. The board may not vote or conduct business in these sessions and therefore minutes should not be kept. If the board does keep a record of the discussion, the unit owners may be entitled to inspect or copy such a record.
Section 22.1 Disclosures/ Unit Purchases
A.The purchaser of a unit should request a disclosure of information pursuant to Section 22.1 of the Condominium Property Act. The board is required to provide certain information including budgets and a statement of any anticipated capital expenditures. If no Section 22.1 request is made, then the board has no duty to inform the buyer of anything. If a board responds to a Section 22.1 request but fails to mention a special assessment, that does not mean necessarily that the board acted improperly. It is possible that the board did not consider passing a special assessment until after the closing of the unit owner's purchase.
Is it legal for the Association to impose and collect a special fee on all unit purchasers?
A. A number of Associations do require unit purchasers to pay some extra fee, such as a contribution to reserves, upon the closing of the purchase. There is an argument that the provisions of the Condominium Property Act would prohibit this type of individualized assessment. However, the practice is quite common and there has been no specific case law decisions on this issue.
Developer Control and Turnover
What does "developer turnover" mean?
A.New and rehabbed condominiums are typically under the control of the developer until such time as the developer calls a meeting of the unit owners for the purpose of electing a board from among the unit owners. Developer turnover means that control of the Association is transferred from the developer-controlled board to the board elected by the unit owners. In addition, it refers to the process whereby the developer provides to the new board all of the Association's funds, books and records, and other property, and provides a financial accounting to the new board.
When does the developer have to turn over control to the homeowners?
A.Section 18.2 of the Condominium Property Act requires the developer to turnover the Association on the earlier date of either 60 days after the conveyance of 75% of the units or 3 years after the recording of the declaration. The developer may turn-over earlier, if it chooses to do so. Please note that all new common-interest homeowners associations are also subject to the turnover provisions of Section 18.5 of the Act.
What should the unit owners do before the turnover?
A.The developer-controlled board has all of the duties, rights and responsibilities of any other board of managers. From our experience, very few developers have taken this obligation seriously. The board must meet 4 times a year, it must pass a budget at an open meeting, the unit owners must be given proposed budget information and an annual accounting, and the developer must pay assessments for all unit owned and added in to the Association from and after the date of the conveyance of the first unit. The unit owners are entitled to inspect certain of the books and records. The unit owners must be vigilant about checking on the developer and contesting any improprieties. If wrongdoing is found, it is far preferable for the unit owners to file a lawsuit before turnover and while the developer owns units. It may be too late to collect money from the developer after the turnover.
A. No. In order to enact a declaration amendment, most probably a majority, if not a super-majority of unit owners will have to approve. Assuming that all procedural requirements for amending the declaration are met, your association can certainly enact an amendment that precludes pet ownership. Indeed, unless there is an explicit provision in the governing document precluding the removal of the ability of owners to have pets and precluding the amendment of that provision, they do not even have to grandfather the current pets. Don’t try to get sneaky about this. In the event a valid amendment is enacted, upon the cessation of your pet’s life, do not replace it while you live in that association. They will unquestionably have the authority to enforce the restriction against you, and you might decide that you just need to “get rid of" your new pet since it’s not allowed in your home. That wouldn’t be fair to the new pet, who would have done nothing more than trust you to give it a good home.
A. This question can’t be readily answered in a “FAQ” format. One would have to determine the cause of the mold and the location of the mold as well as the responsibility for remediation of the mold. Then, there are all those pesky questions about the types of mold, its actual impact on health, the difference between actual damages and psychological trauma, etc. There is even the question of your failure to dig under your sink more frequently (after all, the Board rarely uses your abrasive cleanser). This is the type of matter that should be directly addressed with specific legal advice for a specific situation.
Damage to Others' Property (Negligence)
A. The failure to maintain an appliance within your unit that serves only your unit may well be considered negligence. As a result, damages “flowing” are likely chargeable back to you. As always, specific facts and state laws will govern the outcome.
Damage to Others' Property (no negligence)
A. You probably do not need to pay for those damages. Unless some act or inaction on the part of the owners, their occupants or guests caused the damage, there is likely no chargeability back to the unit; this is one of the reasons that it is prudent for all owners to have insurance. To the extent the neighbors’ items were damaged, their insurance, less deductible, should cover them. To the extent common elements are damaged, the Association’s insurance (less deductible) should cover it. With a hot water heater that is less than two years old, it is not likely that one would be expected to have “maintained” it (other than, of course, keeping it from active harm), so this may well not be a situation where an act or inaction of the owner caused the damage and result in the owner’s liability.
Please note: State law may assign or attempt to assign responsibility to the unit from whence the damage originated. Each state’s statutes and any interpretive case law would have to be reviewed for applicability and interpretation.
What should the new board do after the turnover?
A. It is important for the new board to make sure that it has all of the information that the developer is required to turn over and that the board make sure that it timely pursues any claims that the Association might have against the developer . See our article for details on the information that must be turned over. Developers typically do not provide all of the information requested. For example, as-built plans and drawings are almost never released but these can be indispensable to the board in the future when planning repair and replacement work (and the local municipality most likely will no longer have copies when you need them). The board should take control of all funds of the Association and place safeguards and controls over them. This means changing signature cards or moving funds out of existing accounts into new ones. The board should consider hiring a forensic accountant to do a review of the books and report on any improprieties (such as the failure of the developer to pay assessments or inappropriate developer expenses having been paid out of Association funds. The board should consider hiring an engineer to review the physical condition of the entire property and report any patent or latent defects in construction or design (and to follow-up with the developer to require it to repair or replace defective conditions). It is important to try to do this immediately before any warranties or other claims become time-barred. Finally, the board should hire an attorney as soon as possible to make sure that it is protecting the Association's legal interests and that it begins operating properly from the beginning.
What do we do if the developer refuses to turnover at the time of deadline?
A.In the event the developer fails to turnover when required by law, the Condominium Property Act, at Section 18.2, allows unit owners holding 20% of the interest in the association to call a meeting by filing a petition for such meeting with the developer, and those unit owners have the authority to then send notice of said meeting to the unit owners and to hold the election.
Should I accept appointment by the developer to serve on a developer-controlled board?
A number of developers recruit homeowners to serve on the developer-controlled board. It is extremely unwise for a homeowner to allow the developer to appoint him or her to the developer board. If the developer wants the unit owners to be on the board, it should call a turnover meeting and allow the unit owners to elect their representatives. There is great risk and liability in connection with serving on the developer board. Unit owners should refuse to do so.
A.Waiver is a voluntary relinquishment of a known right. If a condominium association has rights under the governing documents to control the architectural appearance of the property, its failure to enforce its rights over time could be considered a waiver which may prevent the board from enforcing the restriction under some circumstances. It is important to recognize that a condominium board, including a developer-controlled board, does not have the authority to waive the association's rights unless there is a good business reason why it should be allowed. If the developer board wrongfully relinquishes the association's rights, the unit owners could bring suit for damages and for a court order to require the developer board to meet its duties to the association. Once there is a waiver, it is possible to reinstate enforcement activity by notifying the owners and then vigorously pursuing violators. However, the association will not be able to require owners to comply after they have relied upon the board's waiver.
Can a board freeze some unit owners' assessments and not others, particularly freezing the assessments of owners with higher percentages?
A. No, a board cannot "freeze" some owners' assessments and not others. For that matter, it cannot "freeze" assessments at all, since the Board's obligations include repair, replacement and maintenance of common elements as well as administration of the property, and expenses required for these items are likely to vary requiring changes in assessments as annual budgets or other circumstances require.
A. You did not pay the Notice and Demand amount within the time allowed in the Notice and Demand Letter. An association is entitled to recover its reasonable attorneys’ fees and costs incurred in connection with collecting the assessments it is owed. It has no ability to forebear the collection of assessments. Your actions caused the association to incur expenses they would not have otherwise incurred. Even with your payment, the attorneys were already hired to prepare (first, the Notice and Demand letter, next, the lawsuit), and they obviously prepared and filed the lawsuit with the Court. They had to pay the court clerk and the sheriff to serve process on you. Even a payment prior to the first court date does not mean that the Association’s attorney will not have to show up at that first court date. They did and the association paid for the work, and the association is entitled to recover that money.
A. Presumably you are sent a Notice and Demand Letter every few months because you are not paying on a timely basis. Assessments are generally due on the first of the month and are usually considered late on some particular date thereafter, at which time a late fee may be charged by the association. Many associations have 60-day collection policy, meaning that assessments unpaid for more than 60 days result in the account being turned over to the attorneys for collection. Other associations do it based on the amount that is due. Some associations do it without a specific policy. You can certainly anticipate that, in the event you are not timely and regularly making your full assessment payments (including late charges that may apply, separate assessment payments and the like) your account will land in collection. The associations are entitled to recover the reasonable fees and costs incurred with respect to those collections.
A.This is a mistake often made by disgruntled unit owners. The fact is that the unit owners have an obligation to pay their assessments by the covenants of the declaration (and in the case of condominiums, there is also a statutory obligation). The obligation to pay is an independent covenant and therefore withholding payment as a protest is not appropriate. The unit owner ends up being required to pay in full plus has to pay the costs and fees of collection. Instead of withholding assessments, the unit owner should seek to resolve any dispute he or she has with a board, either through the political process or (if necessary) resort to the courts.
A.The declaration of condominium recorded against the property constitutes a contract between the association and all persons who accept title subject to the declaration. The act of accepting a deed to the condominium unit was the same as signing the declaration and agreeing to its provisions. If you had an attorney at the closing, this should have been explained to you. If you obtained a title policy and it does not carry an exception for the condominium, then you may have a claim against the title insurance company.
Rules and Regulations Adopted by Board
What kind of anti-gang rules can or should a condominium have?
A.An association that experiences disturbances and criminal conduct as a result of gang -related activity may pass reasonable rules to solve the problem. The rules must carefully define what conduct is prohibited and take care not to prohibit lawful free speech activity or else the rules will not be deemed reasonable. It is reasonable to impose restrictions against weapons and contraband, loitering, disturbances, graffiti, and fighting. It is not certain whether the courts will uphold more restrictive rules such as prohibitions of gang signs and colors, or limits on the number of persons congregating in the common area. If an association is experiencing a gang problem, it should take some action to hold the unit owners and residents accountable and to prevent disturbances. At the same time, restraint is necessary because the association is not a police agency and its duties do not extend to protecting the residents from criminal conduct. An association is ordinarily not liable for criminal activity on the common elements. However, if the association voluntarily undertakes steps to protect the residents, it can be liable for its failure to protect them.
Use and Occupancy Restrictions
Can the Association prohibit owners from installing satellite dishes?
A.FCC regulations under the Telecommunications Act place limits on the ability of an association board to prohibit or regulate the use of satellite dishes under 39" in diameter. Board restrictions against dishes which are in place to remedy legitimate safety concerns are permitted. The FCC prohibit non-safety restrictions that: (1) unreasonably delay or prevent installation, maintenance or use, (2) unreasonably increase the cost of installation, maintenance or use, or (3) preclude reception of an acceptable quality signal. The Rules apply only to portions of the real estate which are in the exclusive possession of the individual unit owner (such as the Owner's Lot, or a condominium unit owner's limited common elements.) The FCC has yet to issue regulations concerning common property.
A.The Association may restrict or prohibit the renting of units by properly amending its Declaration. The Association can choose to outlaw all renting, or it can grandfather existing tenancies, or can impose other limits to discourage or limit the number of units rented. Generally, property values increase and the ability to obtain mortgage financing becomes easier when an Association has imposed leasing restrictions.
A.If the Association's Declaration already permits household pets, such as dogs and cats, the board cannot prohibit the animals unless the Declaration is amended. If the Declaration is silent about the right to keep pets, then the board could impose a restriction by rule if it had a reasonable reason for prohibiting them. However, it might be unfair to those unit owners who already owned pets and the board should consider "grandfathering" them in.
Can the Association limit the number of persons occupying a unit?
A.This is an issue that requires great sensitivity of the board members. It is not realistic for the board to expect all unit owners to live in some stereotypical nuclear family. Various individuals have different lifestyles, and there are different standards among the various cultural and ethnic groups. At the same time, there has to be a limit to the number of persons occupying a unit. When an excessive number of persons occupy a unit, there is greater traffic, a heavier burden on common utilities and facilities, and there is increased risk of hazards and liability. At some point, excessive occupancy can be a nuisance and the Association can place limits. However, the board may not use occupancy limits to target persons of certain nationalities or races. The limits should not require specific relationships between the occupants or target children, but instead it should be limited to restricting the number of occupants that may safely occupy a unit..
A.The Condominium Property Act defines a board meeting as "any gathering of a quorum of the members of the Board of Managers … held for the purpose of conducting board business." In general, all board meetings must be open to the unit owners except for those few exceptions provided in the Act. Please note that the open meeting provisions of the Act apply not only to condominiums, but also newer common-interest homeowners associations and those who have adopted the forcible entry and detainer procedure for collecting assessments.
A. The association is like (and often is) a corporation. The members elect directors (managers) to operate the association. Most decisions are left to those directors. Meetings of the boards of directors are open to unit owners, but they are not open for unit owner participation unless the board opens it for discussion. In fact, certain limited matters are actually discussed by the board at “executive session”, which occurs outside of the purview of unit owners. The types of items to be addressed in executive session vary from state to state. Most boards allow some amount of time at board meetings for an open homeowner forum, although there may well be restrictions on the amount of time and/or number of questions that a homeowner may ask.
What does it mean for a board meeting to be open and what notice must be provided?
A. An open board meeting is one in which the unit owners are invited to observe. Only board members have a right to participate in the discussion and to vote. The unit owners have no right to speak at the meetings, although almost all associations provide an "open forum" time for the homeowners to address the board. Each board member is entitled to written notice of the meeting at least 48 hours prior to the meeting. The Act also requires that the notice and announcement of the meeting be posted in entranceways, elevators, or other conspicuous places in the condominium at least 48 hours prior to the board meeting (where there is no common entranceway for 7 or more units, the board of managers may designate for posting one or more locations in the proximity of these units). A written notice of any board meeting at which a proposed budget or assessment is to be discussed must be sent to each unit owner at least 10 and not more than 30 days before the meeting.
What meetings may be closed?
A. The law provides that the following discussions take place in closed or executive sessions (meaning that unit owners are not entitled to attend): the portion(s) of any meeting held (i) to discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent, (ii) to consider information regarding appointment, employment or dismissal of an employee, or (iii) to discuss violations of rules and regulations of the association or a unit owner's unpaid share of common expenses. Note that the closed meeting is not really a board meeting because the board cannot render a decision or go to a vote in closed session. The vote on every matter must be taken at an open meeting of the board. Because closed sessions are discussion only and therefore not actual meetings in which business is conducted, there is no need to keep minutes of the meeting. In addition, there is no guarantee that any record of the proceedings would be kept private and confidential.
Can the board members meet in private to discuss issues involving the Association?
A. The boards of many associations meet in private before the regular open board meeting in order to review information, discuss issues, and try to problem-solve over the many questions that come up. These meetings are almost always intended to save time and to enable the board members to be fully informed before an actual vote is taken at the regular meeting. Based upon how the Condominium Property Act defines a board meeting, it is clear that these gatherings are not board meetings (no business is conducted) and therefore the gatherings can be kept private and no notice is required to the unit owners. The board should consider informing the unit owners about these meetings in order to dispel any notion that the board is acting secretly. Also, boards could allow the owners to attend and observe these meetings and should consider doing so. Many municipalities alternate between regular village board meetings in which votes are taken, and "Committee of the Whole" meetings in which the village board discusses various issues more informally. Those informal meetings are open to the public just the same as the regular board meetings and there is no reason why a condominium could not adopt the same approach.
Can the board members conduct business between meetings?
A. In general, the board members may only conduct business at an open meeting of the board. Necessity or emergency situations may arise from time to time, whereby the officers must take action that cannot wait until a board meeting. Most knowledgeable observers would consider this acceptable as long as the board ratifies whatever decisions are made at its next meeting. Telephone polling of board members has no legal validity for conducting business, but it is a good idea to determine whether the board would ratify a course of action at a meeting.
Do individual board members have the right to inspect books and records?
A. Yes. The members of the board have a fiduciary duty to the unit owners and to the association itself to make informed, good-faith business decisions in managing the affairs of the association. In order to be well-informed, all of the books and records, files, documents, and property of the Association must be available to them at all reasonable times. The practice of management companies restricting or limiting a board member's access to the books and records of a association is appalling and exceeds their authority. The board is the governing body of the association and has an absolute right to the books and records.
Do unit owners have the right to inspect books and records?
A. The unit owners have limited statutory rights to inspect books and records. Condominium owners should refer to Section 19 of the Illinois Condominium Property Act. Non-condominium associations may be subject to the requirements of Section 18.5 and also the General Not for Profit Corporation Act, both of which allow members to access books and records for a proper purpose. In general, Section 19 allows unit owners an absolute right to view some books and records and others are limited to a proper purpose, and it provides remedies against an association that wrongfully refuses to allow inspection 30 days after a written request is made.
What is a proper purpose to inspect the books and records?
A. There exists a long line of corporate cases dealing with shareholder's rights to view the books and records of business corporation. The basic rule is that the person requesting the books and records has a legitimate interest in viewing them and does not have the intention to harass or burden the corporation or take any action adverse to the corporation (such as disclosing sensitive information to competitors). In terms of a community association, almost any good faith purpose to inspect the records would likely entitle a unit owner to inspect the books and records.
Fair Housing - Discrimination Laws
A. All residential associations are subject to the requirements of the Fair Housing Act which prohibits discrimination against persons with disabilities (and also prohibits discrimination on the basis of race, color, creed, gender, nationality, and familial status) and requires that the board make a reasonable accommodation to permit the disabled person to enjoy the same rights, benefits, and privileges of ownership as do other unit owners. The board should approve the installation of a wheelchair ramp, at the requesting unit owner's expense, where the ramp's location is feasible, the ramp has been professionally designed and constructed, and the ramp does not compromise the safety of the other residents. Most associations require the requesting unit owner to agree to return the property to its original condition at such time as when the ramp is no longer needed. Those associations with public facilities or commercial uses may also be subject to the Americans with Disabilities Act which would impose the burden upon the Association to make its premises accessible to disabled persons at the Association's expense.
What restrictions can the board impose regarding children?
A. The Fair Housing Act strictly prohibits discrimination against children or families with children, in housing. Except for those very few associations that meet the lawful requirements to be a senior living development, the association is prohibited from any and all discrimination against children. Many associations have improper rules in place. For example, they will permit adults to play ball in the common elements but prohibit the same activity by children. This kind of restriction is illegal.
A. Whether the Association is governed by the ADA or by the Fair Housing Act ("FHA"), or both, turns on the type of activities in which the board engages.
Title III of the federal Americans with Disabilities Act of 1990 and the Illinois Environmental Barriers Act require public accommodations to be accessible to disabled persons. The federal law specifically imposes an affirmative duty to take "readily achievable" actions to remove architectural, communications, and transportation barriers, or to provide "readily achievable" alternative methods.
The federal Fair Housing Act and the Illinois Human Rights Act make it unlawful to discriminate against any person in relation to housing (including services and facilities related to housing) on the basis of race, color, religion, sex, familial status (children under 18), disability, or national origin. The federal Fair Housing Act not only prohibits discrimination against disabled persons, but it also makes unlawful for a person to deny the right of a dwelling resident to make reasonable modifications of existing dwellings if the modification is necessary to afford the disabled person full enjoyment of the premises. Residential associations must also make reasonable accommodations in rules, policies, practices, or services to afford a person with a disability equal opportunity to use and enjoy a dwelling.
Since a residential association is not a public accommodation, the ADA would not ordinarily apply because a condominium is not generally considered to be a public accommodation (it should be pointed out that the ADA imposes many requirements in various areas of law, such as employment, and therefore it may apply to the Association in those areas.) It is possible for an association to be governed by the FHA under some circumstances, and also to be governed by the ADA under other circumstances. For example, associations that have stores existing on the first floor, or which rent out their clubhouse to the public will become public accommodations and subject to the ADA, at least with respect to those public facilities.
The FHA does not require the association to make the common elements accessible, except when it receives a request for a modification by a disabled person. The Association is obligated to permit reasonable modifications of existing dwellings if the modification is necessary to afford the disabled person full enjoyment of the premises. The Association is also obligated to make reasonable accommodations in rules, policies, practices, or services to afford a person with a disability equal opportunity to use and enjoy his or her dwelling. Thus, if a disabled person requests a special parking space or ramp, the Association would be obligated to permit this request (although it need not necessarily incur the expense).
One other issue is that most local building codes now incorporate accessibility standards and handicapped parking requirements. An association would have to comply with the accessibility standards of the municipality.
A. This appears to be an unlawful denial to children of the equal opportunity to use and enjoy the premises. However, the reason for the denial is a forceful one (that residents should be given the opportunity to peacefully swim without the splashing and screaming that goes on in public pools). Instead of ruling against children, it might be better to simply set aside that time for lap swimming (for adult and children lap swimmers).