Understanding Owner Restrictions on Limited Common Elements: Key Legal Guidance for Illinois Community Associations
In some community associations, a unit owner may wonder whether they can modify a limited common element which the unit owner exclusively uses. An Illinois appellate court has provided an answer to this question. In Claymoor Condominium Association v. Majewska, 2024 IL App (3d) 230171, the court held that a unit owner may not modify any common element, including limited common elements, without the approval of the association’s board. Furthermore, the court’s decision provides other guidance for community associations who may seek to initiate legal proceedings in response to bylaw violations. These key takeaways include, but are not limited to:
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- A unit owner may not modify any common element, including limited common elements, without the approval of the condominium association’s board;
- A condominium association is not required to prove a vote was taken before filing a lawsuit against an owner; and
- A condominium association is entitled to seek its legal fees and costs if a unit owner is determined to have violated the declaration.
Facts
Katarzyna Majewska (the “Defendant”) purchased a unit in the Claymoor Condominium Association (the “Association”) in January 2020. She then began to renovate by replacing the windows and raising the ceiling height in one room by approximately 26 inches. The Defendant did not request permission from the Association’s Board of Directors for the change in the height of the ceiling. After learning of the ceiling renovation, the Board determined that the change violated the applicable rules and sent a letter to the Defendant notifying her of the violation.
When the Defendant failed to remedy the violation, the Association filed a complaint in the Du Page County circuit court in May 2020, seeking (1) a permanent injunction requiring the Defendant to return her ceiling and the common area above it to their original conditions and (2) a declaratory judgment that the Defendant “is responsible for obtaining board approval prior to performing or otherwise making an addition, alteration or improvement to the Association’s Common Elements, as required by the Declaration” and “is responsible for reimbursing the Association for all attorney’s fees and costs incurred as a result of enforcing the terms of the Declaration.
On October 14, 2022, the Condominium Association and the Defendant filed cross-motions for summary judgment. The circuit court granted the Association’s motion and the Defendant appealed.
Owners cannot modify either general or limited common elements without board approval
The court held that unit owners cannot modify common elements without board approval. To support this holding, the court looked to both the Illinois Condominium Property Act (the “Act”) and the Condominium Association’s Declaration to determine that a condominium’s limited common elements are a subset of a common element.
765 ILCS 605/2(e) of the Act defines “Common Elements” as “all portions of the property except the units, including limited common elements unless otherwise specified.” Furthermore, Section 2(s) of the Act emphasizes the legislature’s intent to create overlapping definitions of “common elements” and “limited common elements” stating “‘Limited Common Elements’ means 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, including but not limited to balconies, terraces, patios and parking spaces or facilities.” Additionally, Illinois caselaw has been consistent with this approach as the court in Lake Barrington Shore Condominium Ten Homeowners Ass’n v. May, 196 Ill.App.3d 280, 283 (1990) found that “the limited common elements are a subset of the common elements.”
The court found that the definitions of “Common Elements” and “Limited Common Elements” in the Condominium Association’s Declaration were nearly identical to the definitions found in the Act. Additionally, paragraph 17 of the Association’s Declaration provides that “no alterations of any Common Elements, or any additions or improvements thereto, shall be made by any Unit Owner without the prior written approval of the Board.” The court noted that Illinois courts have long held that converting common elements for a single condominium owner’s exclusive use is improper. Accordingly, the owner was prohibited from modifying the common elements without permission from the Association.
A condominium association is not required to prove a vote was taken before filing a lawsuit against an owner
Section 18(9)(A) of the Act provides, in pertinent part, as follows:
“that every meeting of the board of managers shall be open to any unit owner, except that the board may close any portion of a noticed meeting or meet separately from a noticed meeting to: (i) discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent . . . (iv) discuss violations of rules and regulations of the association; that any vote on these matters shall take place at a meeting of the board of managers or portion thereof open to any unit owner.” 765 ILCS 605/18(9)(A)
The Defendant argued that the Condominium Association’s lawsuit should be dismissed because the Board of Directors did not vote at an open meeting to instigate litigation. The court argued that Illinois caselaw has found that a vote by an association’s board of directors is not required before an association can initiate a lawsuit.
In North Spaulding Condominium Ass’n v. Cavanaugh, 2017 IL App (1st) 160870, the court explained that “another panel of this court recently indicated that a condominium association’s complaint is not required to allege as an element of a forcible entry and detainer action that the association’s board voted at an open meeting to initiate litigation.” Additionally, in Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st) 162072, the court concluded that a condominium association is not required “to prove that it properly noticed and conducted an condominium association board meeting where a vote was taken to authorize” its actions. Accordingly, a condominium association is not required to prove a vote was taken to authorize its actions prior to filing a lawsuit against a unit owner.
Before filing a lawsuit against a unit owner, it is best practice for a condominium association to conduct a board meeting that is open to all members and vote to authorize the lawsuit. However, in the event of an emergency where a meeting cannot be held, Illinois courts have held that ratification of a prior board decision can occur by filing a lawsuit. As such, should an emergency occur where an association meeting cannot take place to vote to authorize a lawsuit, the condominium association may still file the lawsuit.
An association is entitled to seek its legal fees and costs if a unit owner is determined to have violated the declaration
The Defendant argued that the trial court abused its discretion in granting the Condominium Association’s request for attorney’s fees. The appellate court disagreed with this argument and found that the Defendant was on notice that she would be liable for the Association’s attorney fees if she were to be found in default “under the provisions of the Act, Declaration, By-Laws or rules and regulations of the Association.” In support, the appellate court looked to (1) the Condominium Association’s letter to the Defendant which informed the Defendant that the Association would be seeking attorney’s fees; (2) paragraph 22 of the Association’s Declaration which provides that all expenses of the Condominium Association in connection with a legal action will be assessed against the defaulting unit owner; and (3) Section 9.2 of the Act which provides that the Association is entitled to attorney’s fees in the event of any default by any unit owner. As such, the Condominium Association was entitled to request attorney’s fees in connection with the legal proceedings against the Defendant.
Conclusion
A community association board should have a clear understanding of their governing documents to know when a violation of the governing documents has occurred. The court’s decision in Claymoor Condominium Association v. Majewska makes it clear that an owner may not modify the common elements – including limited common elements which the owner controls – without the permission from the board. Furthermore, the court’s decision makes clear that a board may ratify a previous board decision through the filing of a lawsuit. If your condominium association is faced with bylaw violations from its members, it is important for the association to engage an experienced community association attorney to understand the condominium association’s legal options. The attorneys at Hirzel Law, PLC have the requisite experience to guide a condominium association who may be faced with an uptick in member bylaw violations.
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.
