Condo Adviser: Proper formalities must be followed if board levies additional assessment

Q: I am a unit owner in a six-flat, self-managed, condominium association. This past year, our expenses exceeded the budget, so at a board meeting, the board of directors passed a motion to adopt a 13th assessment that all unit owners must pay to make up the shortfall. There was no advance notice to the unit owners. Is the board allowed to require unit owners to pay a 13th assessment to make up a shortfall?

A: A condominium board requiring unit owners to pay a 13th assessment in a calendar year to raise additional funds to meet expenses is not proper unless proper formalities were followed pursuant to the condominium declaration or the Condominium Act to either adopt a special assessment or a revised annual budget.

By definition, funds to be collected that are not included in the annual budget are a separate or special assessment pursuant to Section 18(a)(8) of the Condominium Act. While the board can ultimately accomplish its objective of raising funds equal to a 13th assessment, the board must follow the legal formalities to do so. Those formalities were not followed if there was no adoption of a special assessment or revised annual budget with proper notice to the unit owners.

Q: I purchased a condominium on the penthouse floor of a new construction condominium building. To my surprise, a few months after I moved into the building, the board constructed a common element rooftop garden terrace open to all unit owners and their tenants and guests, which is directly above my unit. I constantly hear the dragging of furniture, the dropping of objects, and sometimes people noise until 1 a.m. What can I do?

A: Common element rooftop decks and gardens in condominium buildings are common and within the authority of the board to construct assuming compliance with the applicable codes and ordinances. However, notwithstanding the foregoing, a condominium association with a rooftop deck or garden should have rules and regulations adopted by the board governing reasonable use of the amenity, including prohibitions of disruptive or noxious behavior, loud music and reasonable hours of operation to name a few, for use of a common amenity.

In the event unit owners, their tenants or guests violate governing documents, such as being noxious and offensive into the late hours of the night, pursuant to sections 9.2 and 18.4(l) of the Condominium Act, unit owners are subject to fines and legal fees being levied against them. Use of a common element rooftop amenity in a high-rise at 1 a.m. is not reasonable or common.

Q: I am a unit owner in a condominium association and the board has proposed a rule that all dog owners may be fined if a resident dog owner fails to clean up after their dog and the board cannot identify the culprit dog or unit owner. This seems very unfair and like collective punishment to me. Is such a rule enforceable in Illinois?

A: Pursuing to sections 9.2 and 18.4 (l) of the Condominium Act, the board may levy fines and legal fees against a unit owner for a default by the unit owner, their tenant or guests of a provision of the governing documents. Unit owners are entitled to notice and an opportunity to be heard as part of the fine levying process.

However, Illinois law also requires a condominium board to act reasonably, which means there must be a determination that there is a violation of the governing documents by a specific unit owner or their tenant or guests before levying a fine against the unit owner. Levying fines against a unit owner without any evidence that a specific unit owner, or their tenant or guest committed a violation would be deemed unreasonable by a court, and therefore, unenforceable.

Candidly, such an aggressive tact smells of collective punishment and could subject individual board members to breach of fiduciary duty claims for levying a fine against unit owners that did not commit a violation.

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

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