Q–When originally built, the town homes in our complex did not have decks as part of their units. However, over time, many owners have built decks onto their units with permission of the board of directors.
Other units in the complex either have patios or balconies. These areas were part of the original construction and are maintained by the association.
Because the board has taken on the responsibility of maintaining the deck additions, should the percentage of ownership of these units be changed to absorb the additional maintenance costs?
A–The board cannot change the percentage of ownership for any unit without the unanimous consent of the association members. Section 4(e) of the Illinois Condominium Property Act states that percentages are computed by the value of each unit, and, once determined, the percentages remain constant unless changed by agreement of all unit owners.
Percentages of ownership for condominium units are determined by the developer. The developer must base this determination on the value of each unit; so presumably the extra value of a deck or patio was taken into consideration in calculating the original percentages.
It would not be consistent for your board of directors to maintain patios and balconies, but not the decks of units. Each of these areas is considered a limited common element.
Your declaration states that, until the board assumes responsibility for limited common elements, owners are responsible for the repair, maintenance, operation and appearance of these areas.
The best course of action for the board is to make the owners responsible for all limited common elements, or have the board maintain these areas but charge the owners directly for the maintenance costs. In that case, the additional charges are not borne by association members who do not have a deck, balcony or patio.
Q–I am on the board of a 54 unit condominium association in a Chicago suburb. We are faced with the problem of having too many people living in a single unit.
Our units are two-bedroom and two-bath residences. Recently, a unit was sold to a couple, but now there are five adults and two children living there.
Is there any legal way the association can control the number of people who can occupy a unit?
A — The best form of regulation is to amend the declaration to impose occupancy restrictions. The most common restriction is a limitation of two people per bedroom.
The board of directors may adopt rules and regulations to restrict residency, but occupancy rules may be subject to challenge on the basis of whether they are reasonable.
An amendment to the declaration is presumed to be reasonable because it is imposed by a vote of the unit ownership and is a recorded covenant.
Even without a specific limitation, if an excessive number of people create a disturbance or cause a nuisance, the board has the power to levy a fine or file a lawsuit to stop the problem.
The board may also review this situation with local authorities to determine whether the number of occupants exceeds limitations imposed by a municipal ordinance. In that case, the board may report the situation to city officials for enforcement.
Q–I am a condominium owner in a 590-unit complex. Our on-site manager, whose salary and benefits are paid by association members, charges a $50 fee to the owners for use of the clubhouse. The exact way he obtains this fee is by charging $25 to obtain a key and $25 to return the key after the member has used the clubhouse.
Because our on-site manager is not a member of the association, but an employee of the management firm that runs our property, isn’t this practice illegal or morally wrong?
Approximately $3,000 is collected annually for use of the clubhouse. Our board members see nothing wrong with this practice. What do you think?
A — I would check your facts. The board of directors, and not the on-site manager, makes the decision to charge for use of facilities in the common elements.
Most declarations provide that a condominium board may charge a fee for individual use of recreational facilities. This “user fee” generally covers the cost of use, cleaning and may serve as a damage deposit.
Monies collected from user fees do not go to the property manager. The funds are collected by the manager for the association.
Rules seminar
On Wednesday, the Illinois Chapter of the Community Associations Institute will hold a seminar on rules and regulations. The program from 6:30 to 9 p.m. will cover the purpose of rules, elements of effective rules, board authority to adopt regulations, and enforcement procedures. The program will be held at the Holiday Inn Naperville, 1801 Naper Blvd. in the suburb. For further information, call the Chapter office at 630-980-0251.
Condo conference
The Association of Condominiums, Townhouse and Homeowner Associations (ACTHA) will hold its Fall Conference and Trade Show on Saturday, Oct. 21, at Monty’s in Bensenville.
The trade show will begin at 8 a.m. and include two sets of programs. One track will cover building maintenance, budget and contract issues. The second track will include programs on financial statements, communications between directors, owners and professionals and rule enforcement.
For further information, call ACTHA at 312-987-1906 or visit the ACTHA Web page at www.actha.org.
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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, 4th floor, 435 N. Michigan Ave., Chicago, Ill., 60611. Sorry, he can’t make personal replies.
