How to Resolve the 5 Most Common Violations of Illinois Condo Bylaws

How to Resolve the 5 Most Common Violations of Illinois Condo Bylaws

Each condominium association has governing documents which set forth the contractual relationship between the association and the unit owners. One of those governing documents is the condominium bylaws. A condo association’s board of directors is obligated to enforce the declaration and the bylaws to ensure that each member of the condominium association is abiding by the governing documents. Failure to enforce the association’s governing documents could lead to disarray within the association and could lead to a lawsuit against the association. This blog article will address the five most common bylaw violations in condominium associations and tips for resolving them.

1. Commercial Use Restrictions in Illinois Condominium Bylaws

Generally, the condominium documents will restrict the commercial use of a unit or lot. Illinois courts have held that such restrictions are valid.  If the condominium bylaws do not define “commercial use,” then it is appropriate to look to the dictionary definition to define the term under Illinois law. In one case, the Illinois Court of Appeals analyzed a declaration that prohibited “businesses” and stated as follows:

The Declaration did not define “business,” and so we consulted the dictionary definition of the term. According to Merriam-Webster Dictionary, the term “business” is defined as “‘a usually commercial or mercantile activity engaged in as a means of livelihood,’ a ‘commercial or sometimes an industrial enterprise,’ and ‘dealings or transactions especially of an economic nature.’”

Wortham v. Vill. of Barrington Hills, 2022 IL App (1st) 210888, ¶ 32, 202 N.E.3d 987, 995, appeal denied, 197 N.E.3d 1134 (Ill. 2022). 

In applying the above definition, one Illinois case relied on a commercial use restriction to enjoin an owner from operating a commercial babysitting business out of a condominium unit. Bd. of Managers of Vill. Square I Condo. Ass’n v. Amalgamated Tr. & Sav. Bank, 144 Ill. App. 3d 522, 523, 494 N.E.2d 1199, 1199, 98 Ill. Dec. 872, 872 (2d Dist. 1986). Given that commercial use can encompass a wide variety of business activities, condominium associations must be proactive in taking enforcement action.  While fines may deter certain violations of the condominium bylaws, in the context of commercial use, a unit owner typically makes enough money to pay the fine and continue the activity.  As such, obtaining an injunction to stop the unit owner from engaging in commercial activities is typically the most appropriate remedy.

2. Noise, Nuisance and Illegal Activity in Condominiums

Most condominium documents contain a restriction that prohibits any type of illegal activity. Additionally, most condominium bylaws contain provisions that restrict any activity that is unreasonably noisy, a nuisance, dangerous, or unsightly. This provides the board with the authority to enforce the condominium association’s governing documents should a unit owner host a loud party, play loud music or permit smoke to spread to the common areas or other units. For example, in Bd of Directors of Plum Creek Condo Ass’n v Lorman, 2013 IL App (1st) 121198-U, the Illinois Court of Appeals issued an injunction requiring a unit owner to install carpeting on their floors to prevent noise from emanating from a condominium unit.  The more specific the governing documents are, the better chance the board has of successfully enforcing the association’s governing documents. For instance, what constitutes a “nuisance” is often subjective.  In Carey v 400 Condo Ass’n, 2024 IL App (1st) 230358-U, ¶ 1 the Illinois Court of Appeals refused to issue an injunction to prevent smoking inside of units that allegedly infiltrated other units when the governing documents permitted smoking and there was no evidence that the smoke infiltration was “unreasonable.”  In some cases, fines can be an effective remedy to prohibit conduct, but an injunction is still the most effective remedy if fines do not stop an owner from interfering with other owners having quiet enjoyment of their units.

3. Enforcing Parking Issues in Chicago Condominiums

A condominium association with limited parking availability can cause problems for the board. If it has not been done so already, the board should adopt rules and regulations that set forth the association’s parking guidelines. A well-drafted parking policy should identify the number of vehicles each unit owner may have on the property, where unit owners and their guests may park, and what types of vehicles are permitted on the association’s property. Furthermore, the parking policy should provide the board with enforcement mechanisms such as towing or fines to enforce such a parking policy.  However, when adopting a parking policy, or assigning spots, it is important for an association to ensure that it has obtained the proper approval from the unit owners.  For example, in Sawko v Dominion Plaza One Condo Ass’n No 1-A, 161 Ill Dec 263; 218 Ill App 3d 521, 530; 578 NE2d 621 (1991), the Illinois Court of Appeals held that a condominium association’s parking space allocation was unenforceable as it did not obtain the proper consent from the unit owners before assigning parking spaces.

4. Enforcing Animal Restrictions in Condominium Bylaws

The condominium bylaws generally set forth the types of animals that are permitted on the property. In Sawko v Dominion Plaza One Condo Ass’n No 1-A, 161 Ill Dec 263; 218 Ill App 3d 521, 530; 578 NE2d 621 (1991), the Illinois Court of Appeals held that restrictions on animals are enforceable, even a prohibition on dogs.  As such, if an owner keeps animals in violation of the condominium bylaws, fails to pick up after them, or allows them to run free creating safety issues, condominium associations may either impose fines or obtain an injunction to have the animal removed.  If a unit owner claims that an animal is necessary for assistance or emotional support, the board may be required to provide a reasonable accommodation under the Fair Housing Act, even if it means permitting an animal that is not allowed by the condominium bylaws. The board should seek the advice of legal counsel should a unit owner claim they are entitled to the assistance of an emotional support animal.

5. Enforcement of Leasing and Rental Restrictions in Condominium Declarations

Many owners now buy condominium units as investment properties. If a condominium association permits rentals, 765 ILCS 605/18(n) of the Illinois Condominium Property Act sets forth other obligations unit owners must comply with prior to leasing their unit.   Similarly, condominium associations with renters may have restrictions related to minimum lease periods or rental caps.  However, many condominiums with permanent residents do not want short-rem rentals.  In Wood v. Evergreen Condo. Ass’n, 2021 IL App (1st) 200687, ¶ 20, 189 N.E.3d 1045, 1052, appeal denied, 183 N.E.3d 901 (Ill. 2021), the Illinois Court of Appeals held that a commercial use restriction can be used to stop short-term rentals. Accordingly, many condominium associations need to obtain an injunction to enforce express rental restrictions, commercial use, or residential use restrictions to stop short-term rentals.  Unfortunately, fines are typically not an effective remedy to stop rental violations as the landlord can build the cost of the fine into the rent.

Conclusion

A condominium association’s board must enforce the bylaws as written, as they have a fiduciary duty to do so. Generally, the declaration and condominium bylaws will set forth various restrictions with respect to the five subjects identified above.  Community associations should consult with an attorney to ensure that they are utilizing the most effective enforcement remedy.  Whether it is ensuring that the appropriate process is followed to levy a fine, or seeing an injunction in court, the attorneys at Hirzel Law, PLC can assist in enforcing your condominium documents.

 

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.