Q-Does a condominium board have the obligation to enforce the declaration, or can the condominium board simply ignore it? What remedy does a condominium unit owner have if the board refuses to enforce the declaration?
A-A condominium board has a fiduciary duty to the unit owners. Based upon the leading case entitled Wolinsky vs. Kadison, the fiduciary obligation requires the board to follow and enforce the provisions of the condominium declaration.
While the board cannot ignore the provisions of a declaration, the directors have the right to interpret its provisions. Most declarations contain standard language that board decisions regarding the meaning of the declaration are binding on the unit owner.
Unit owners may seek an injunction to force the board to comply with the provisions of the declaration. The declaration is a contract between the owners and the association which the board must enforce. If the board fails to meet this obligation, a court can steer them in the right direction.
Q-What can the unit owners do when a board refuses to support what is written in the condominium declaration?
We have some extra parking spaces that were given to certain owners by the developer to use while they owned the unit. Our declaration states that the extra parking spaces are part of common elements that the board may assign to unit owners, but the spaces are not transferrable with a unit.
Recently, an owner with one of the parking spaces sold his unit. The buyers think they own the extra space. We asked the board to advise the new owners before the sale that the extra space did not go with the unit. The board did not take any action and the unit owners are using the extra space.
What is the next step to secure the extra space which rightfully belongs to the association?
A-If the additional parking spaces could not be sold to the new owners, the association members may sue the board and the new owner to enjoin the permanent assignment of this space.
As noted in the 1981 Illinois Appellate Court decision in Stuewe vs. Lauletta, a portion of a parking area that is part of the common elements cannot be conveyed without an amendment to the declaration.
If the space was not conveyed by a deed from the developer, the space is part of the common elements. The board should then assign the space to the next owner on a waiting list for a second space.
Q-My wife and I are senior citizens living in a mobile home park. We have the home up for sale and also have a deposit on a condominium in a southwest suburb. Can we obtain some type of a condominium declaration so that we know what we are facing in this type of ownership?
A-You are entitled to receive a copy of the condominium declaration from your future association, along with other items of information. Section 22.1 of the Illinois Condominium Property Act requires that certain information be made available to a prospective purchaser upon demand.
The information includes a copy of the declaration and by-laws and the rules and regulations. It also includes a statement of expenses the association expects to incur during the current and next two years, the status of the reserve fund and the current financial statement of the association.
This information will give you a clear picture of the regulations the association imposes, as well as its financial condition so that you determine whether assessments will remain stable or increase.
All too often, prospective purchasers like yourselves do not demand the information they are entitled to receive to give them a true picture of their future condominium.
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Mark Pearlstein, is a Chicago attorney who specializes in condominium law. Write to him c/o Condo Log, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, he can’t make personal replies.
