Q–Two years ago, the condominium association where I live in the northwest suburbs began restoration of the townhouse balconies. Paint had chipped off the wood and was splintering. At that time, a crew did some of the repairs and the expense was paid by the association.
This past May, however, the board decided that owners will be required to restore or replace their balconies. The costs range from $1,500 to $2,500 per balcony. Repairs must be completed by the end of August.
It appears that the board has changed the rules of the game–and this is not the first time.
Are homeowners responsible for the balcony, even though it is outside the living area? Is it legal to change the rules for this expense?
The board acknowledges the high cost of this project, which they openly state they do not want the association to pay.
A–If the balconies are defined as limited common elements and the association declaration and bylaws permit the board to charge owners for repairs to such areas, the owners must pay this cost.
Balconies are classified as limited common elements under state condominium law and I assume your declaration has the same classification.
While balconies are located outside the units, they serve a particular unit exclusively.
Section 9(e) of the Illinois Condominium Property Act states that the condominium instruments may provide that charges for limited common elements may be assessed only to the particular unit. Thus, many declarations state that the board may charge all or part of the cost of repairing limited common elements to unit owners.
The fact that the association paid the expense in the past is not binding on the board. Future decisions of the board are based upon financial circumstances at the time of the current project.
Charging unit owners for the balcony expense may not be a popular decision, but it appears to be legally correct.
Q–Recently, our association’s board of directors adopted a rule that prohibits the use of gas or charcoal cooking or grilling devices on the balconies of the second- and third-floor units.
Naturally, the members of the board live in town home units that are not affected by the rule; but if affects most of the residents.
The board claims that the insurance carrier recommended this rule because there have been a couple of fires at the complex in the last several years, even though none of them was caused by a cooking grill.
This rule seems ridiculous, given the fact that the complex has a large outdoor pool. Furthermore, our excessively high monthly assessments won’t even be reduced.
Is the board of directors acting within its power by adopting such measures? Why wasn’t this rule discussed ahead of time with the residents?
One day I am enjoying a good cookout, and the next day I am threatened with a fine.
A–The rule is reasonable and constitutes a common step taken by directors to prevent what has proven to be a source of frequent problems for associations.
According to Condominium Insurance Specialists of America, in 1995, a condominium building in a southwest suburb sustained $500,000 in damages from the explosion of a grill propane tank.
Prohibiting the use of gas or lighter fluid will eliminate a fire hazard. Experienced insurance practitioners in the association field often insist upon this type of rule. Electric starters for grills may be a reasonable accommodation, but the board is within its rights to prohibit combustible materials on wood balconies.
You do, however, raise pertinent questions regarding the application of the rules.
There may not be a valid basis to limit the prohibition to only the second- and third-floor units. The risk also exists for town home units; the board should adopt the rule for the entire association.
In addition, Section 18.4 of the Illinois Condominium Act requires the board to hold a meeting of the unit owners to discuss the rule before adoption. You indicate that this step was not taken by the directors.
You have a legitimate objection to the adoption process if the board has not called a meeting of the owners to discuss the proposed rule before adoption.
Q–What is the source of the current ruling regarding the installation of satellite dishes on common elements of a building by individual condominium owners? Does the rule still allow an association to remove a satellite dish that was placed on the rooftop of our building?
A–The source of the ruling was Section 207 of the Telecommunications Act of 1996, known as the Over-The-Air Reception Devices (OTARD) Rule. The rule permits owners to install satellite dishes on areas within their exclusive control or within a unit.
The rule does not permit unit owners to install a satellite dish on areas that are portions of the common elements not within the exclusive control of an owner. In the latter case, the rule would prohibit an owner from installing a satellite dish on a multi-unit building.
For a copy of the rule, you may contact the Federal Communications Commission on the Internet at http://www.fcc.gov or by Fax-On-Demand at 202-418-2830.
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Mark Pearlstein is a Chicago lawyer who specializes in condominium law. Write to him c/o Condominiums, Real Estate Section, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill. 60611. Sorry, he can’t make personal replies.
