Hirzel’s Condo Chronicles: Architectural Control in Illinois Community Associations: What Needs Board Approval?
Step into the world of legal enlightenment with Hirzel’s Condo Chronicles, the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, share intriguing case studies, and dive into the heart of legal matters affecting your community association. Plus, don’t miss out on the monthly legal news updates with Hirzel’s Monthly Roundup, where we serve up the latest legal insights hot off the press. Get ready for a journey where law meets life, and wisdom meets the everyday!
In this episode, Kevin Hirzel and Rita Khan unpack the essentials of architectural control within Illinois community associations. They explain that any exterior or structural modification, such as fences, decks, pools, or even combining condo units, usually requires prior written board approval, as outlined in the governing documents.
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This transcript has been edited for clarity.
Rita Khan: Welcome back to another episode of Hirzel Condo Chronicles. I’m Rita Khan, director of Marketing.
Kevin Hirzel: And I’m Kevin Hirzel, managing member of Hirzel Law. Today, we’re laying down the law literally on architectural approvals and modification requests for your Illinois Community Association.
Rita Khan: So if you’re wondering whether you can combine your condo units into a penthouse palace, build a man cave shed the size of Wrigley Field, or sneak in a surprise pool, this episode is for you.
Kevin Hirzel: And just to be clear, installing a basketball hoop on your garage does not mean you now have a sports complex.
What exactly is architectural control, and what are Illinois community associations?
Rita Khan: So Kevin, let’s start with the basics. What exactly is architectural control, and what are Illinois community associations?
Kevin Hirzel: So architectural control refers to the process by which a condominium homeowners’ association.
Town Home Association, anything of the like that governs the exterior changes or structural modifications. Governing documents, like declaration of bylaws, they usually require prior written approval from the board or an architectural review committee before making any changes to a unit or the common elements.
Certainly whether you’re in a city, those requirements are gonna be different than if you’re in the suburbs. There’s just not gonna be as many exterior items, if you’re in a city compared to if you’re in the suburbs and they’re gonna be more concerned about, structural, types of things and the impact on the neighbors in the safety of the building there.
Rita Khan: So why did the homeowner try to install a lighthouse on the roof?
Kevin Hirzel: You stump me again. I give up already and we’re only a couple minutes into the episode.
Rita Khan: Because they wanted to shed some light on the neighborhood guidelines.
Kevin Hirzel: Oh, all right. Well, I hope they submitted a modification request for that lighthouse first.
Rita Khan: So when the board does approve a modification, what should that agreement include? So great question Rita. A written modification agreement should clearly outline the specific design and plans approved. Certainly is gonna require compliance with building codes, permits being pulled, the responsibility for maintenance repair, the costs associated with those are gonna be back on the owner.
Kevin Hirzel: The association shouldn’t be taking on extra costs. Certainly using licensed and insured contractors, should indicate whether the approval is, permanent or revocable. Whether that approval transfers to future buyers, and if there’s any deadlines for the completion of work, that kind of thing.
Any sound requirements, if construction can only occur during certain hours, things of that nature.
Common Architectural Violations
Rita Khan: So what are some of the most common architectural violations that you see?
Kevin Hirzel: Well, some of the most common in court worthy, are gonna be: new construction plans, fences, landscaping pools.
A lot of these things are gonna be pretty common, out in the suburbs for sure.
Rita Khan: Let’s talk about new construction. Tell us about Patel v. Prairie Lakes HOA.
Kevin Hirzel: All right, so this was a real interesting one, because the association essentially tried to kinda come up with, the architectural control requirements as they went along.
So there was a lot of back and forth in this particular case. The association, these people wanted to build a home. They sent ’em a letter and they basically said, here’s 20 things that we don’t like, and then their builder, who had built homes there before respondent said, oh, we checked everything off on your list.
I think we’re good to go. And then they came up with a list of, five more things that weren’t on the original list. More or less what the court said is that, well none of these things were actually in your governing documents. One of them, related to some of the roofing materials and whether those had to be shingles, or basically copper on the peaks, they said that restriction had been waived.
You can’t enforce it to these people because you had, a bunch of other people in the neighborhood that had already used it. But the rest of these restrictions you made up, this one was particularly interesting because some of the requirements they attempted to put on there that were actually not in the rules or the governing documents got so picky as to get into them not having enough crown molding on the inside of their home.
Certainly, when you go too, too far past the documents the courts are not gonna like that. And so they basically said, the ACC here, their determination was arbitrary and unenforceable. And the patels, could build their home as submitted.
Rita Khan: So if it’s not in the documents and it hasn’t been enforced consistently, it’s not enforceable.
Kevin Hirzel: Correct. Courts, they expect clarity and fairness. Boards can’t make up the rules mid-project as you’re going along. So let’s talk fences. So in Countryside Lake Association v. Hahn, we had an interesting case. homeowners installed a decorative metal fence without approval. The document said you can only have a split rail fence.
And that was down, by the lake. And so there, the court rejected , their no response means yes argument. And so there, there was no response from the association when they submitted it. But they clearly built a type of fence that was not permitted under the governing documents.
Fence had to come down. Owners had to pay 65K in attorney’s fees too for that, for a fence case!
Rita Khan: Wow. So, surprise wrought iron is a quick way to lose a case.
Kevin Hirzel: Exactly. Always get written approval and make sure what you’re doing complies with the governing documents.
Modifying Common Elements Without Permission
Rita Khan: So what happens when someone modifies common elements without permission?
Kevin Hirzel: Bad things Rita. Bad. Bad. Things. So that’s what happened in 2424 Chicago Condo Association v. Revite Corp. And so that, that was a situation. Owner installed fence on the common elements without approval. No brainer. Court ordered it to be removed. It doesn’t matter how nice the fence looked. No approval equals no fence.
Rita Khan: So it sounds like ask forgiveness later isn’t gonna work.
Kevin Hirzel: No, not in community associations. We had a similar result, in Mission Hills Condo. M-4 Ass’n v. Penachio. There, it involved basically putting a storage cabinet and a wall recess. So that’s gonna be more of a city type of issue.
But they said, that was an unauthorized, modification in the common elements. So we had a similar result there as well.
Pools
Rita Khan: So plot twist, the real storage wars are happening in condo basements. Let’s dive into a splashier dispute. Pools!
Kevin Hirzel: Alright, so we definitely got some pool cases here in Illinois.
So the first one that comes to mind is an interesting one. It’s Blazina v. Benck. And so in that one we, in HOA, they approved a pool, they approved a cabana. But the problem is this particular owner, they had wetlands in the back. Oh, you can’t really build anything into those pesky wetlands. And so they built this, the pool and the cabana on the side of the house!
And the association actually approved this. There was a provision under documents that said that the board, could actually approve deviations, from these different requirements that required pools to be in the back of the house. But the neighbor didn’t like that, and so they took him to court and they sued.
But the neighbor, or basically the neighbor lost that case. And the reason being is the documents allowed, the board to make this modification. They allowed them to specifically approve something that deviated from the documents. So the court said they were still, within the rules in doing that.
And the owner got to keep the pool on the side yard there. Ordinarily that would not be the case though.
Rita Khan: So it sounds like if the documents allow deviations and the process is followed, then the approval stands.
Kevin Hirzel: Yep. Deviations are in amendments. They just require proper board action. And similar we had in Saddle Hill Community Association v. Cavallari, we had a homeowner there.
They built a fence, without submitting plans. The declaration required prior approval, but that wasn’t necessarily, a deviation case. The court just went ahead and they ordered it removed.
Rita Khan: So it’s my house, I can do what I want to…doesn’t hold water.
Kevin Hirzel: Only if you’re cool with removing your brand new fence, and they don’t have the deviation provision that the the association can grant you that exemption.
Rita Khan: So what about if there are unclear rules?
Kevin Hirzel: So that was a situation that is similar. We had Standlee v. Bostedt and had some part of the documents banned outbuildings, others allowed them with approval. The court said though that the documents must be read as a whole, and the owners could request permission for an outbuilding.
And that circumstance, it was okay.
Rita Khan: So Kevin, why did the unapproved deck get kicked out of the neighborhood?
Kevin Hirzel: I don’t even wanna ask, why Rita?
Rita Khan: Because it had too many shady connections.
Kevin Hirzel: Oh it’s Chicago. It’s Chicago. So that reminds me of another deck case that we have here in Illinois.
So it’s Lake Barrington Shore v. May, the court allowed a small deck that’s slightly encroached on the common elements. The documents didn’t prohibit it. The deviation was minimal. So basically the court said that’s okay. That there was no material violation of the bylaws in that particular case.
Rita Khan: So minor deviations also might be tolerated, but again only if those documents allow it.
Kevin Hirzel: Right. When in doubt though, ask first to build later.
Rita Khan: So, is the board allowed to approve any modification it wants?
Kevin Hirzel: Not always. So there was another case, it’s called Carney v. Donley. They’re the board who approved a modification that reduced the owner’s rights and the common elements.
The court came back and said, no, that’s gonna require unanimous consent. That the board actually didn’t have authority to do that. So it’s gonna depend whether you’re a condo, you’re a homeowner’s association, and actually what the documents permit.
Rita Khan: So your neighbor can’t just annex the tennis court for a hot tub.
Kevin Hirzel: Not unless everyone agrees.
Hirzel Hot Take
Rita Khan: So before we wrap up, Kevin, what’s your Hirzel Hot Take?
Kevin Hirzel: Build first, ask later is a great way to build…a lawsuit. Start with your governing documents, not your toolbelt.
Rita Khan: And mic drop. So what are your top tips for boards?
Kevin Hirzel: Review and update your governing documents regularly.
Write modification agreements for all approvals. Enforce the rules consistently. No favorites. Be proactive about that enforcement. As soon as you see something, you should be contacting the attorney, getting a letter out. If that doesn’t stop at getting an injunction, don’t approve changes that impact shared space without owner consent.
Certainly talk to an attorney about whether the modifications , are gonna be allowed or not.
Rita Khan: And remember, denying your neighbor’s pirate ship playground isn’t personal. It’s procedural.
Kevin Hirzel: Unless they shout architectural violation, then it’s personal and hilarious.
Rita Khan: Thanks for joining us on this episode of Hirzel’s Condo Chronicles.
Whether you’re building up your association or tearing down confusion. Do it by the book.
Kevin Hirzel: And if you’re not sure, ask your board or the lawyer, but definitely not your neighbor who thinks bylaws are optional.
Rita Khan: Until next time, stay compliant and curb appealing
Kevin Hirzel: Don’t be the reason we write the next case law update.
Rita Khan: Each month, step into the world of legal enlightenment with Hirzel’s Condo Chronicles, the podcast brought to you by Hirzel Law. Join us as we explore the ins and outs of the legal landscape, sharing intriguing case studies, and dive into the heart of legal matters affecting your community association.
Plus, don’t miss out on the monthly legal news updates with Hirzel’s Monthly roundup, where we serve up the latest legal insights hot off the press. Get ready for a journey where law meets life and wisdom meets the every day. The information on this podcast is intended for informational purposes only.
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