Q. I am the president of a condominium association. We are looking to restrict the number of rental units. Will we need to have an attorney change our condo declaration? Can you refer us to any resources that would show examples of declarations or by-laws with rental restrictions?
A. Based on Illinois case law, the owners may amend the declaration to restrict leasing by the required vote, or the board of directors may adopt a rule to limit rentals. The amendment is preferable because unit owners should vote on a major change to the property rights of association members. An attorney must prepare the amendment and record the document with the county recorder of deeds. The board may also have to notify lenders of the leasing amendment if that step is required in the condominium documents.
The options available to a board include a prohibition against leasing when a current lease expires, prohibition upon the sale of a unit, or the exemption of all current unit owners from leasing restrictions.
Most leasing amendments contain a hardship restriction. This exclusion will permit the board to allow leasing for a restricted period if the owner can establish a financial hardship.
Although not the subject of a specific Illinois case, associations can limit the number of leased units by a declaration amendment. Case law in a majority of jurisdictions supports an amendment that is approved by the owners and, thus, is presumed to be valid.
Q. I am on the board of a 25-unit building on the Near North Side of Chicago. We have had complaints about smelling cigarette smoke from several unit owners. They say smoke is permeating into the hallways, stairwells and even their units.
In the past we have written letters to owners who smoke, asking them to install a door sweep and keep smoke-removal machines in their units. When smoke affects other unit owners and gets in common areas, how far can the association go to limit or ban smoking, or fine owners who continue to cause discomfort to other units from their smoking?
A. The board can go as far as the owners will permit by a vote.
Based upon state law and city ordinance, Illinois recognizes the harmful nature of second-hand smoke. Most declarations contain a clause that prohibits conduct by a resident that is a nuisance or an annoyance to others. Smoke transmission can be a nuisance and harmful.
The board can fine owners if the directors believe that smoke transmission from the unit is more of an annoyance than the average unit resident should tolerate.
The most effective legal step is to amend the declaration to prohibit smoking. The board can pass a rule directing smokers to take certain action that will minimize the transmission to other units. Like any rule, the board may levy a fine against the owner if a resident does not take steps to limit his or her smoke transmission.
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Mark Pearlstein is a Chicago lawyer who specializes in condo law and is chairman of the legislative committee of the Illinois chapter of the Community Associations Institute. E-mail ctc-real estate@tribune.com.
