Condo Adviser: Condominium Act requires associations to have just one class of membership

Q: I am on the board of directors of a midsize condominium association. Our declaration and bylaws have no restrictions on rentals. The board would like to seek unit owner approval to amend the declaration and bylaws to provide that any purchaser of a unit after the effective date of the amendment may not rent their unit for more than 24 months. Current unit owners would be grandfathered to obtain their support to reach the requisite unit owner approval. Is this legal? Someone on the board claimed the amendment would create two classes of ownership, which is prohibited by the Condominium Act.

A: Section 18(b)(2) of the Condominium Act states that a condominium association shall have one class of membership; however, leasing restrictions via an amendment to declaration and by-laws have been repeatedly upheld by Illinois courts and courts in other states, thus, they do not violate the one class of membership requirement in the Condominium Act.

Illinois law holds that amendments to condominium instruments approved by the unit owners will be upheld by the courts unless such amendment violates a constitutional right or is otherwise prohibited by statute. The grandfathering of unit owners is also a common practice in certain situations to entice the unit owners to vote in favor of a declaration amendment, and also does not violate the requirement for one class of membership because it treats all unit owners as of the effective date of the amendment the same.

Q: I am a unit owner in a condominium and live on the penthouse floor under the roof. The roof had a leak and caused damage to several of the penthouse floor units. Historically, the board has paid for roof repairs plus any damages up to and including the drywall in the interior of the units. Can the board arbitrarily change their policy and refuse to pay for drywall repairs emanating from a leak of the common elements?

A: Section 12(a)(1) of the Condominium Act requires condominium associations to procure property insurance on the common elements and units, including limited common elements up to the bare walls, floors and ceilings of the unit. Most declarations mirror the foregoing requirement that the association repair damages up to and including the drywall and a primer coat of paint in units. The coverings of walls, floors and ceilings in units such as painting, hardwood flooring or wallpaper are the responsibility of unit owners.

The board of directors cannot arbitrarily change the requirements for coverage of damages emanating from a common element contained in the Condominium Act or the association’s governing documents.

Q: I am a unit owner in a large condominium association comprised of many different buildings. Our board has embarked on a major, five-year roof repair and replacement project, and the board also wants to retain a project manager to oversee the project. In my opinion the management company is paid for overseeing all work at the property. Is the board allowed to spend the additional money to hire a separate company to be a project manager?

A: Management companies for community associations are governed by the management agreement between the association and the management company. The scope of services a management company is required to provide are contained in the management agreement, which would rarely, if ever, include project management services. Property managers may coordinate access to common elements, but it is unlikely that a property manager has the requisite knowledge to be a qualified project manager reviewing contractor work product and assessing completion per a construction contract, especially for a major roof repair and replacement project.

Pursuant to Section 18.4 of the Condominium Act, the board has the authority to enter into contracts in its reasonable judgment, which would include project management services.

Got a question for the Condo Adviser? Email ctc-realestate@chicagotribune.com.

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