765 ILCS 605/18.4: What Illinois Condominium Board Members Need to Know Before Adopting Rules & Regulations
Rules and regulations are used by the board of directors of a community association to implement the existing governing documents. Pursuant to 765 ILCS 605/18.4(h), the board may adopt and amend rules and regulations covering the details of the operation and use of the property. This article will address the key items board members should know before adopting rules and regulations.
How may a board adopt and amend rules and regulations?
Pursuant to 765 ILCS 605/18.4(h), the board may adopt and amend rules and regulations covering the details of the operation and use of the property only after a meeting of the unit owners called for the specific purpose of discussing the proposed rules and regulations. Generally, the board may enact rules and regulations without a vote of the owners unless the association’s condominium documents state otherwise.
Is notice of the meeting required?
Yes, pursuant to 765 ILCS 605/18.4(h), the co-owners must receive notice of the meeting. The notice of the meeting must contain the full text of the proposed rules and regulations, and the notice must satisfy the requirements set forth under the association’s condominium documents. A failure to notify the association’s unit owners of a rule and regulation may result in a court finding that the board breached its fiduciary duty of utmost candor to unit owners. Cohen v. 175 E. Del. Place Homeowners Ass’n, 2024 Ill. App. 230516 (Ill. App. Ct. 2024).
Is a quorum of the unit owners required?
Although 765 ILCS 605/18.4(h) provides that the meeting must conform to the requirements of 765 ILCS 605/18(b) which generally provides that a quorum of the unit owners be present, a quorum of the unit owners is not required under 765 ILCS 605/18.4(h) unless the condominium documents explicitly require a quorum of such a meeting. However, a quorum of the board is still required.
May a board use rules and regulations to amend an association’s governing documents?
765 ILCS 605/18.4(h) provides that rules and regulations (1) cannot violate the First Amendment to the United States Constitution or Section 4 of Article I of the Illinois Constitution, and (2) cannot conflict with an association’s condominium documents.
In Apple II Condominium Ass’n v. Worth Bank & Trust Co., 277 Ill.App.3d 345, 346, 659 N.E.2d 93 (1995), the Court stated that restrictions in condominiums can be found in one of two places: (1) in the declaration, and amendments thereto; or (2) in rules and regulations promulgated by the board. As the Court went on to say, if the restriction is in the declaration or the amendments, it is entitled to a presumption of validity, no matter how unreasonable it is. However, if the restriction is in a rule or regulation then that presumption does not apply and “the board must show that the use it wishes to restrict is antagonistic to the association’s legitimate objectives.” If a board attempts to restrict activity using rules and regulations, a court may still find the restriction reasonable if the board applies the rule to each of the owners and the purpose of the rule is rationale. Bd of Directors of 175 E Delaware Place Homeowners Ass’n v Hinojosa, 223 Ill Dec 222, 225; 287 Ill App 3d 886, 890; 679 NE2d 407, 410 (1997).
In Stobe v. 842-848 W. Bradley Place Condo. Ass’n, 2016 IL App (1st) 141427, ¶ 20, 48 N.E.3d 310, 314, when discussing whether a particular rule passed by a board conflicted with the condominium documents, the Court said that if it did, then the board would lack authority to implement it and no matter how reasonable the rule is, the rule is not enforceable.
Accordingly, rules and regulations cannot be used to amend an association’s governing documents. Rules and regulations may be used to implement the existing governing documents. Pursuant to the foregoing cases, if a board wishes to restrict an activity through the association’s rules and regulations that is not a restriction in the association’s declaration, then the restriction will not be entitled to a presumption of validity.
Conclusion
When passing rules and regulations, boards should be cognizant of the limitations set by the Illinois Condominium Property Act. As a rule of thumb, if the topic subject to the rule or restriction is already included in the condominium documents, an amendment to those documents is almost always required for any substantive changes. The attorneys at Hirzel Law, PLC can assist with the drafting and preparation of rules and regulations 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.
