Most condominium declarations will limit the ability of a unit owner’ ability to make changes to any structure, improvement, or any of the limited or general common elements within a condominium or common interest community association to preserve the aesthetics of the community. In many cases, deed restrictions will require the unit owner to obtain the express consent of an architectural control committee or the community association’s board of directors before commencing construction, modifying a unit, or modifying common areas. Approval by an architectural control committee or the board of directors allows a homeowners association to maintain some level of control to make sure that the appearance and aesthetics are maintained to a certain level of quality and consistency. Despite the express requirements in the restrictive covenants, unit owners will sometimes move forward with changes without seeking the approval of the architectural review committee or the board. In those cases, if the actions are not abated by the delivery of a cease and desist letter, a lawsuit may be necessary, as became necessary in 2424 Chicago Condo Ass’n v. Revite Corp. matter (2021 IL App (1st) 200906-U).
The Revite Corp Case
On December 30, 2021, the First District Appellate Court in Illinois issued a ruling in the 2424 Chicago Condo Ass’n v. Revite Corp. matter (2021 IL App (1st) 200906-U), regarding restrictions and requirements in a condominium’s declaration and the award of attorneys’ fees in favor of an association after a protracted litigation.
The condominium at issue in the 2424 Chicago case is an eight-unit, mixed-use condominium of which six of the eight units are residential and the two units on the ground floor are commercial. The defendant is the owner of the two commercial condominium units, which is a medical practice. The defendant built a fence directly in front of the commercial units and did not seek permission from the condominium association. The lawsuit was filed in April 2016 by the condo association seeking injunctive and declaratory relief. The condominium association sought a ruling that the fence must be removed or, alternatively, that the condominium association had the authority to remove the fence. The defendant argued that: (1) the fence was not on the common elements; (2) the original condo developer approved the fence; and (3) the condo association had not met a condition precedent to filing suit because it failed to first hold a disciplinary hearing. At the trial court level, the condominium association was granted summary judgment, which included an award of $43,621.68 in attorneys’ fees pursuant to the Illinois Condominium Act, and an injunction that required the removal of the fence. The defendant appealed the decision, including the grant of attorneys’ fees in favor of the condominium association.
The First District Appellate Court sustained the findings of the trial court. As to the argument that the fence was not built on common elements, the Court pointed to multiple pleadings whereby the defendant admitted that the fence was erected in the limited common elements. The Court went further and stated that, because the fence exclusively served the commercial units, it was a limited common element under Section 2 of the Condominium Property Act (which defines the limited common elements as “a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units”) and the express terms of the condominium declaration. The defendant tried to argue that because the plats for the property did not expressly label the area where the fence was constructed as a limited common element, that it was owned by the defendant. That argument was also rejected by the Appellate Court, and in doing so, the Court held that a limited common element can be marked as such on a plat, or designated in the condominium declaration, or both, but the fact that the plat did not expressly identify the area where the fence was erected as a limited common element did not create an inconsistency. Even further, under the Illinois Condominium Property Act, even if there was an inconsistency between the declaration and the plat, the declaration would supersede the plat. See 765 ILCS 605/4.1(b) (“in the event of a conflict between the provisions of the declaration and the bylaws or other condominium instruments, the declaration prevails except to the extent the declaration is inconsistent with this Act”). Therefore, because the area in question was expressly designated as a limited common element in the condominium declaration, no further analysis on this issue was needed.
The Court then went to analyze whether the consent of the condominium association to build the fence was required. In that case, the condominium declaration provided that “[n]othing shall be altered or constructed in or removed from the Common Elements except as constructed or altered by or with the permission of the Developer at any time before the first annual meeting of the Unit Owners without the written consent of the Association.” Therefore, the Court held that written consent to build the fence was required (and not obtained), and that the condominium association had the authority to “protect the appearance and aesthetics of the condominium building because the Association has the authority to approve or disapprove modifications, alterations, or construction on the common elements since those projects impact, inter alia, the appearance of the condominium building.”
In reaching its decision, the Appellate Court relied heavily on the 1986 decision of Saddle Hill Community Ass’n v. Cavallari, 150 Ill. App. 3d 134, 135 (2d Dist. 1986). In the Cavallari matter, a unit owner constructed a fence without first submitting plans and obtaining the permission of the association’s architectural review committee. The declaration in that case stated that “[n]o building, fence, wall or other structure shall be commenced, erected, or maintained” until specific construction plans are submitted to and reviewed by an architectural review committee. The appellate court affirmed the trial court’s decision to issue an injunction compelling the removal of the fence. Id. at 136-37. The reference to Cavallari is important for an association because, in that case, the court held that a condominium association is entitled to an injunction—even without a showing of substantial injury—if the instruments allow for the association to obtain injunctive relief. Id. at 135; see also Yorkshire Village Community Ass’n v. Sweasy, 170 Ill. App. 3d 155 (1988) (allowing injunctive relief to stop the construction of planters). The Court then stated that the failure to obtain permission from the condominium association to build the fence was “an unequivocal breach of the declaration, to which the association was authorized to abate through a lawsuit that seeks injunctive relief.”
In the 2424 Chicago case, the Court further rejected the argument that the developer had granted permission to build the fence. Importantly, as the Court identified, by the time the fence was to be constructed, control of the condominium association had been transitioned to the unit owners, who at that point, had the authority to approve or disapprove of the request to alter the limit common elements.
A large portion of the opinion focused on the attorney fee award in favor of the condominium association. The defendant made four primary arguments as to why the attorneys’ fees award should not be sustained: (1) attorneys’ fees should not have been granted under Section 9.2 of the Condominium Property Act because it was not alleged to have violated the Act; (2) the association did not follow the declaration because it failed to provide the defendant with a notice of violation and a disciplinary hearing; (3) the amount of the fee award was unreasonable; and (4) the insignificance of the issue that the association had with the fence (which was a decorative fleur-de-lis on the top of the vertical posts) did not justify the size of the award.
As to the granting of attorneys’ fees, Section 9.2(b) of the Condominium Property Act provides:
“Any attorneys’ fees incurred by the Association arising out of a default by any unit owner, his tenant, invitee or guest in the performance of any of the provisions of the condominium instruments, rules and regulations or any applicable statute or ordinance shall be added to, and deemed a part of, his respective share of the common expenses.” 765 ILCS 605/9.2(b)
The Appellate Court rejected the argument that the condominium association needed to assert a statutory violation to obtain attorneys’ fees because Section 9.2(b) of the Condominium Property Act also references a default of the provisions of the “condominium instruments.” Therefore, if fees were only recoverable for a violation of the Condominium Property Act, the portion of Section 9.2(b) that allowed recovery of fees for a violation of the condominium declaration would be rendered meaningless. Additionally, the Appellate Court stated that it was not a critical determination because the declaration also allowed for the recovery of attorneys’ fees and court costs, and the association was entitled to fees under that document in addition to Section 9.2(b) of the Illinois Condominium Property Act.
The Appellate Court also rejected the argument that the condo association should not be entitled to attorneys’ fees because it failed to hold a disciplinary hearing. In doing so, the Court stated that the defendant failed to cite to anything in the record to support this contention on appeal. Even further, it held that the defendant failed to follow Illinois Supreme Court Rule 133(c) which requires a party, who is claiming that a plaintiff failed to meet a condition precedent to suit, to put forth actual facts to support this alleged failure. In doing so, the Court stated that in Illinois a general denial to the allegation that a condition precedent was met is treated as an admission that the condition was performed. See, Deutsche Bank National Trust Co. v. Roongseang, 2019 IL App (1st) 180948, ¶ 23. Therefore, because the condominium association had pled that it met all conditions precedent to filing suit against the unit owner, and the unit owner had not filed anything with specific facts to support a denial of that allegation, the Appellate Court held that this issue was waived by the defendant.
There are a few takeaways from the Revite Corp. decision. The first is that it is better to ask for permission than forgiveness. The unit owner in this case was ultimately forced to remove the fence, and pay at least $50,000.00 in attorneys’ fees for violating the condominium declaration. The other takeaway from the Revite Corp. decision is that courts will enforce the condominium instruments according to their plain language. Accordingly, it is important to have well draft condominium bylaws that clearly set forth the rules of the community. Accordingly, condominium associations should become familiar with the provisions of the condominium declaration and the bylaws and enforce them as written. If the condominium bylaws do not reflect the values of the community, the solution is to amend them. Whenever a question arises regarding the enforcement of architectural control provision in condominium documents, it is important seek counsel for an experienced attorney before taking any steps in an attempt to abate a potential violation of the bylaws.
Adam Toosley is a member at Hirzel Law, PLC and focuses his practice on real estate litigation, zoning and land use, construction, and financial services litigation. Over the course of his career, he has represented property owners, landlords, condominium associations, lenders and all parties in the construction chain, handling all aspects of real estate-related disputes, including construction defect cases, payment and landlord-tenant disputes as well as real estate foreclosures, mechanic’s lien cases and fraud and business tort claims in state and federal court as well as in mediations and arbitrations throughout the United States. He is licensed in both Michigan and Illinois. He can be reached at (312) 626-4535 or at firstname.lastname@example.org.
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