Q. I purchased a unit in a condominium association that has an amendment to the condominium declaration that prohibits smoking in the units and limited common element balconies. Failure to comply with the smoking prohibition will subject unit owners to significant fines and other remedies. Is a smoking prohibition in a unit legally enforceable?
A. A condominium declaration itself is a restrictive covenant on real estate that contains provisions that are binding on unit owners, including the rights and responsibilities of the association and the unit owners, as well as use and occupancy provisions that limit how a unit owner may use their unit. Condominium declarations are living documents that may be amended with the requisite vote of the unit owners, which may add additional restrictions from those that were originally contained in the declaration.
Common restrictions that can be approved by the unit owners relate to leasing restrictions, smoking prohibitions and even shifting maintenance, repair and replacement responsibilities from a condominium association to a unit owner. Amendments that are properly adopted are legally enforceable unless they violate a constitutional right.
Q. I live in a master association. Our master board took out a loan for landscaping improvements. Is a master board able to approve a loan without a vote of the unit owners?
A. In Illinois, the statute directly governing master associations is section 18.5 of the Condominium Act. The remainder of the Condominium Act applies only to condominiums. Section 18.5 does not contain requirements regarding the adoption of special assessments, thus, for a master association, the master association declaration itself governs the board’s authority regarding the adoption of special assessments. If the master association declaration allows the board to adopt a special assessment within a board vote only, the board has the authority to do so.
Q. I live in a midrise condominium association and our condominium board is reluctant to commission a reserve study due to board members fearing liability if they do not implement every recommendation in the reserve study and increase assessments to pay for property conditions that need to be repaired or replaced in the future. Is it recommended for condominium boards to commission a reserve study?
A. A reserve study is one of many tools a condominium board may take into consideration to fulfill the legal requirement per section 9(c) of the Condominium Act for a condominium budget to contain reasonable reserves for capital expenditures and deferred maintenance. Whether a board commissions a reserve study or not, board members have a fiduciary obligation to maintain, repair and replace the common elements and budget for such future expenses. Failure to perform such maintenance, repair and replacement when needed could expose a board member to liability.
A reserve study is recommended to assist boards with understanding the remaining useful life of building common elements for budgeting purposes, thus it is a guide to educate the board on the timing of when common elements components may need repairs or replacements. While the reserve study is not legally required to be procured, the board may otherwise be challenged to fully understand the condition of the common elements to properly plan for future capital expenditures.
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