765 ILCS/27: How to Amend an Illinois Condominium Declaration?
Given the ever-changing nature of the Illinois Condominium Property Act (the “Act”), condominium associations must regularly review their governing documents to ensure smooth operations and avoid exposure to litigation. This article will address how to amend an Illinois condominium declaration under the Act.
What percentage of unit owners must agree to amend the condominium declaration?
765 ILCS 605/27(a)(i) provides that an affirmative vote of 2/3 of voting unit owners must approve amendments, unless the condominium instruments provide for a different percentage. However, Section 27 expressly prohibits a condominium instrument from requiring more than 3/4 vote of all unit owners. As such, amendment approval will require somewhere between 50.1% and 75% of the unit owners depending on the language in the condominium instruments.
Additionally, 765 ILCS 605/18(b)(13) states that the following three specific amendments require 2/3 majority vote of unit owners notwithstanding the language in the condominium instruments: (i) merger or consolidation of the association; (ii) sale, lease, exchange, or other disposition (excluding the mortgage or pledge) of all, or substantially all of the property and assets of the association; and (iii) the purchase or sale of land or of units on behalf of all unit owners.
What if mortgagee consent is required for an amendment?
Mortgagee consent is generally not required for an amendment unless explicitly required under the provisions of the condominium instruments. If mortgagee consent is required under the condominium instruments, 765 ILCS 605/27(a)(ii) provides that the mortgagee must receive a request to approve or consent to the amendment by certified mail. Following receipt, a mortgagee is deemed to have approved or consented to the amendment unless the mortgagee delivers a negative response to the requesting party within 60 days after the mailing of the request.
Which amendments do not require owner consent?
765 ILCS 605/27(b) permits non-material amendments by a board of directors to correct omissions, errors, or inconsistencies in the condominium documents where those documents do not conform to the Act or some other statute or law in the State of Illinois. However, this power cannot be used to impact any unit owners’ property rights, unless any such impacted unit owners’ consent to the amendment. Additionally, a board can also amend the condominium documents to correct scrivener’s errors in the designation of common element responsibilities or where the total percentage allocated to the units does not equal 100%. In these situations, a written petition of 20% of the total votes within the association can be submitted within 30 days of the board’s action asking that the amendment be voted upon by the unit owners as a whole.
Other sections of the Act expressly permit certain types of amendments to the declaration without unit owner approval. 765 ILCS 605/31 permits the board of directors of a condominium association to relocate unit boundaries or subdivide units without a vote. Accordingly, unless the condominium documents expressly prohibit it, a unit owner may purchase two adjoining units and move the boundary between them only with board approval or subdivide units upon the recording of an amendment to the declaration.
Additionally, under 765 ILCS 605/29, a unit owner owning 2 or more units has the right to remove a partition between units, if the removal does not weaken, impair or endanger any common element or unit, and the unit owner notifies the board of the nature of removal or alteration at least 10 days prior to commencing work.
Lastly, 765 ILCS 605/26 permits the board to approve an amendment to a declaration that transfers limited common elements, such as parking spaces, without unit owner approval based on an application from the unit owners desiring to transfer the limited common elements.
What if an omission or error in the declaration may not be corrected by amendment procedure under 765 ILCS 605/27(b)(1)-(2)?
Pursuant to 765 ILCS 605/27(b)(5), if an error or omission exists in the declaration which may not be corrected by an amendment procedure under 765 ILCS 605/27(a)-(b), then the circuit court in the county in which the condominium is located may have jurisdiction to hear a petition of one ore more of the unit owners or of the association to correct the error or omission. The court may require that one or more methods of correcting the error or omission be submitted to the unit owners to determine the most acceptable correction. All unit owners in the association must be joined as parties to the action.
When is an amendment effective?
Pursuant to 765 ILCS 605/17(a), an amendment of the declaration is not valid until the amendment is recorded. As such, even if an amendment is passed, the amendment may not be enforced until recordation.
Additionally, 765 ILCS 605/17(a) provides that an amendment will be deemed effective upon recordation unless the amendment sets forth a different effective date.
Conclusion
Amending a condominium declaration may be wise if the declaration appears out of date to avoid costly disputes in the future. When in doubt as to whether an amendment to the governing documents requires owner approval, it is always a good idea to seek counsel from a community association attorney. Amending a declaration without appropriate approval may lead to confusion among the members and, in some cases, may lead to expensive litigation over the validity of the amendment. The attorneys at Hirzel Law, PLC can assist with the drafting and preparation of amendments to comply with the requirements of the Act and the association’s condominium instruments.
Jeremy Fernando is an Associate Attorney at Hirzel Law, PLC. Mr. Fernando is licensed to practice law in the State of Illinois. He concentrates his practice on community association law, condominium law, homeowners association law, and real estate law. Mr. Fernando’s legal career includes serving in corporate practice where he represented insurance companies and institutional investors in U.S. and cross-border private placements of securities, including transactions in the Netherlands, England, Ireland, Australia, and Germany. Mr. Fernando earned his Juris Doctor from Marquette University Law School, where he graduated with honors and ranked in the top 15% of his class. He also served as an Associate Editor of the Marquette Law Review. Mr. Fernando is committed to providing effective legal representation to his clients and is passionate about helping communities navigate complex legal challenges. He may be reached at 312-552-7669 or jfernando@hirzellaw.com.
