The Homeowners’ Native Landscaping Act: What Illinois Community Associations Need to Do to Comply with the New Landscaping Law

The Homeowners’ Native Landscaping Act: What Illinois Community Associations Need to Do to Comply with the New Landscaping Law

The Illinois Homeowners’ Native Landscaping Act, 765 ILCS 167/1, et seq., which became effective on July 19, 2024, regulates the ability of Illinois community associations to prohibit certain types of landscaping.  The declaration and rules and regulations of most Illinois community associations will typically require some form of approval for an owner to install landscaping, but they are typically silent as to whether condominium or homeowners associations must allow landscaping that is native to Illinois.  To avoid violating the new requirements in the Illinois Homeowners’ Native Landscaping Act, community associations will need to enact rules that comply with the new landscaping requirements and ensure that nothing in the declaration conflicts with the Act as well.

Do all Illinois community associations have to comply with the Homeowners’ Native Landscaping Act?

Pursuant to 765 ILCS 167/5, any community association that meets the definition of a condominium association, as set forth in 765 ILCS 605/2 of the Illinois Condominium Property Act must comply with the Act.  Similarly, common interest community association that meets the definition of a common interest community under 765 ILCS 160/1-5 of the Common Interest Community Association Act must also comply with the new landscaping requirements in the Homeowners’ Native Landscaping Act.

What are the new landscaping requirements applicable to community associations under the Homeowners’ Native Landscaping Act?

The Homeowners’ Native Landscaping Act makes it illegal for Illinois community associations to completely prohibit residents or owners from planting various types of Illinois native species as part of their landscaping plan.  765 ILCS 167/10 states as follows:

An Association shall not prohibit any resident or owner from planting or growing Illinois native species on the resident’s or owner’s lawn so long as the area is maintained predominantly free of weeds, invasive species, and trash, and vegetation does not extend over or onto neighboring properties, public or common sidewalks, pathways, streets or other public or common areas or elements, and does not interfere with traffic or utilities.

765 ILCS 167/5 defines an Illinois native species as follows:

“Illinois native species” means trees, shrubs, vines, ferns, flowers, forbs, sedges, grasses, and other plants growing in the State of Illinois before European settlement or as otherwise defined by rule by the Department of Natural Resources. “Illinois native species” does not include exotic or noxious weeds regulated under the Illinois Noxious Weed Law or the Illinois Exotic Weed Act.

The Illinois Department of Natural Resources has a list of native species for plants that community associations may want to review when developing new landscaping rules.

Can Illinois community associations still regulate landscaping?

The Homeowners’ Native Landscaping Act still permits Illinois condominiums and homeowners associations to regulate landscaping, if they are not completely prohibiting native species.  Pursuant to 765 ILCS 167/10, a community association may adopt reasonable rules and regulations governing “a planned, intentional, and maintained native landscape that do not impair the native landscape’s proper maintenance and care or impose height restrictions.”  765 ILCS 167/5 defines a “native landscape” as follows:

“Native landscape” means an intentionally maintained area of trees, shrubs, vines, ferns, flowers, forbs, sedges, grasses, and other plants composed mainly of Illinois native species. “Native landscape” does not include exotic or noxious weeds regulated under the Illinois Noxious Weed Law or the Illinois Exotic Weed Act.

765 ILCS 167/10 also clarifies that the Act does not apply to common areas, common elements, or other property owned by a community association.  Similarly, an owner has no right to plant native species or otherwise landscape property that the resident does not own or have authority to landscape under the declaration.

Conclusion

The Homeowners’ Native Landscaping Act will create new considerations for Illinois community associations when considering landscaping requests.  Given that most volunteer board members and architectural control committee members will not know every type of native species that could show up in a landscaping plan, we recommend consulting with a community association attorney to adopt new rules so that everyone involved in the architectural control process is familiar with the Homeowners’ Native Landscaping Act.  Similarly, it is advisable for condominium and homeowners associations to review their declarations to determine if amendments are necessary to avoid potential violations of the Homeowners’ Native Landscaping Act that could result in a lawsuit.

 

Kevin Hirzel is the Managing Member of Hirzel Law, PLC. Mr. Hirzel is licensed to practice law in state and federal courts in Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. Mr. Hirzel has been recognized as a Super Lawyer in Real Estate Law by Super Lawyers Magazine, a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine, and as a Best Lawyer in Real Estate Law by U.S News and World Report’s Best Lawyers Publication. Hirzel Law, PLC represents community associations, condominium associations, cooperatives, and homeowners associations in Michigan and Illinois. He may be reached at 312-552-7669 or kevin@hirzellaw.com.