The Board of Managers for a condo association has many roles and responsibilities, including everything from collecting assessments to maintaining common elements throughout the condominium. One of those roles, and the one that can create the most conflict with condo unit owners, is the enforcement of the provisions in the Condo’s governing instruments, including its bylaws and rules and regulations. This article will provide some guidance on the steps that should be taken by a Board when faced with a potential (or actual) bylaw violation by a unit owner or a tenant in a condo unit.
General Rules That Apply to Bylaws and Rules and Regulations In an Illinois Condo
“Condominiums are creatures of statute and, thus, any action taken on behalf of the condominium must be authorized by statute.” Glazer v. Priv. Residences at Ontario Place Condo. Ass’n, 2022 IL App (1st) 210156, ¶ 22. Along those lines, “[t]he affairs of condominium associations are controlled by the Condominium Property Act,” and the “administration of a condominium is governed by its declaration, board rules and regulations, and bylaws,” and the Condominium Property Act “delineates the general content of the declaration and bylaws.” Id. “Where a unit owner’s rights must be determined, the Act, the declaration, and the bylaws must be construed as a whole. [Citation.] This concept similarly applies where the court must determine the scope of a condominium board‘s authority because the same rights and obligations are implicated.” 4043 S. Drexel Condo. Ass’n v. Burke, 2022 IL App (1st) 210666-U, ¶ 109, citing Alliance Property Management, Ltd., v. Forest Villa of Countryside Condominium Ass’n, 2015 IL App (1st) 150169, ¶ 27.
A condo association may enact and amend rules and regulations covering the details of the operation and use of the property. Board of Directors of 175 East Delaware Place Homeowners Ass’n v. Hinojosa, 287 Ill.App.3d 886, 890, 679 N.E.2d 407 (1997) (citing 765 ILCS 605/18.4(h)). The rules and regulations govern the requirements of daily living in the association. Hinojosa, 287 Ill.App.3d at 891, 679 N.E.2d 407. Such rules must be objective, evenhanded, nondiscriminatory, and applied uniformly. Id. A court will carefully scrutinize such rules to determine if they are reasonable in their purpose and application. Id. at 892.
Section 9.2 of the Condominium Property Act discusses enforcement of the operative documents. More specifically, that section provides:
In the event of any default by any unit owner, his tenant, invitee or guest in the performance of his obligations under this Act or under the declaration, bylaws, or the rules and regulations of the board of managers, the board of managers or its agents shall have such rights and remedies as provided in the Act or condominium instruments including the right to maintain an eviction action against such defaulting unit owner or his tenant for the benefit of all the other unit owners in the manner prescribed by Article IX of the Code of Civil Procedure.
Additionally, this section provides that “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 expense.”
Enforcing Condo Bylaw Violations
The first step whenever a Board of Managers becomes aware of a potential bylaw violation is to perform some additional investigation into the issue. The amount of investigation will depend on the nature of the alleged violation. For example, if the violation is one where a unit owner is short term renting in violation of the bylaws, the Board (by itself or with the assistance of its property manager) can review the online rental platforms to confirm whether such renting is taking place. If the violation is something in the nature of a noise complaint by a neighboring unit owner, there may not be much that can be done other than potentially going into the neighboring unit to confirm whether the noise complaint has validity and questioning the complaining witness and the unit owner. Along these same lines, it is important to find out whether the purported violation was performed by the unit owner, or a tenant, because, under Section 9.2 of Illinois’ Condominium Property Act (765 ILCS 605/9.2), the condo association may be able to file an eviction against a tenant who is violating the condo bylaws (in addition to seeking fines and other remedies as detailed below).
As part of this initial investigation, the Board should also review the actual language of the bylaws, as well as any rules and regulations that are in effect related to the alleged bylaw violation. Many times, especially if the bylaws are older and have not been updated, what the Board believes is a violation may not be part of the governing instruments for the condo. Even further, the remedies provided to the Board for a violation may be different depending on the type of violation. In most instances, the Board will be given the ability to seek injunctive relief to abate any violation. However, the ability to fine a unit owner for a particular violation varies from condo to condo. Additionally, during this review, the Board should also review the current state of Illinois law to make sure that the activity conducted by the unit owner is not protected under Illinois law, including First Amendment protections such as freedom of speech.
If the investigation shows that a bylaw violation has occurred (or is occurring) and that the activity is precluded by the language of the bylaws and not protected under Illinois law, the next step would be to provide notice to the unit owner of the bylaw violation and demand that the unit owner cease and desist from continuing any violation. If the governing instruments allow for a fine, and the Board decides that it wishes to levy such a fine, the unit owner must be given an opportunity to be heard before any such fine can be assessed. “How to Impose and Enforce Fines in an Illinois Condo Association” was published on the process for levying and enforcing fines in an Illinois condo and that article outlines the process.
If a violation persists, and the unit owner fails to cease the violation, the Board may be left with no other choice but to file a lawsuit seeking declaratory and injunctive relief. These types of suits are generally referred to as seeking equitable relief, and if the specific court in the jurisdiction where the condo is located has such a court, will be filed in the “chancery” division. The language of the condo instruments will outline the process that needs to be undertaken before any such action is filed, including providing a 30-day notice to defaulting unit owner (and possibly the tenant). This action is usually considered a last resort because, although most condo instruments allow for a condo association to recover attorneys’ fees and costs, there is no guarantee that the court will approve all, or any, of the requested attorneys’ fees and costs, and there is a good chance that the association will incur more in the way of said fees and costs than what will be granted by the court. Under Illinois law, a judge had discretion in determining the amount of fees and costs, and this discretion is afforded great deference by reviewing courts.
Enforcing the bylaws for an Illinois condo is not as easy or straightforward as one might expect. There are many procedural steps that must be undertaken to avoid a claim by a unit owner (or a tenant) that it was not given appropriate notice or that the action taken by the Board violated the unit owner’s due process rights. Most of the time, the Board, in consultation with the property manager, can easily handle the initial notice and fine hearing process, but if litigation is being considered, an attorney must be retained by the association, not only to assist with any filings, but to confirm that all necessary steps have been taken correctly by the Board. The failure to follow the correct procedures and steps can result in the condo association incurring attorneys’ fees that will not be recoverable or, in some cases, having to defend against an action filed by a unit owner. This is especially true in Illinois, where a condo association is given the right to evict unit owners for non-payment of fines and unit owners and tenants for violating the condo association’s governing instruments. Sometimes, taking a step back and confirming all this information will save significant funds and headaches down the line.
The attorneys of Hirzel Law, PLC focus their practice on condominium and homeowners association law in addition to real estate law. Our attorneys have extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. We stand by our clients, offering quality legal representation and promptly responding to our clients’ needs. Contact Hirzel Law online or call 312-552-7669 to learn how our Illinois attorneys can help.