Five Reasons Illinois Condominium Associations Must Amend Their Governing Documents

When was the last time your condominium association reviewed its declaration and bylaws? If your condominium association’s governing documents have not been reviewed or revised recently, the condominium association may have significant legal liability. Oftentimes, condominium associations suffer costly and avoidable consequences because their governing documents were outdated, incomplete, or in conflict with current law. While many condominium associations are diligent in their day-to-day operations, few associations realize that governing documents are not “set-it-and-forget-it” instruments. Instead, governing documents must evolve alongside legal developments, technology, and the practical needs of the community. This article will outline the five most common reasons Illinois condominium associations should consider amending their declaration and bylaws.

1. Outdated Provisions That Conflict with Illinois Law

Perhaps the most dangerous pitfall for any Illinois condominium association is failing to update governing documents that conflict with current law. 765 ILCS 605/18 of the Illinois Condominium Property Act expressly voids any provision in a declaration or bylaws that contradicts the Illinois Condominium Property Act. Accordingly, condominium associations relying on provisions in their governing documents contradicting the Illinois Condominium Property Act may be enforcing legally invalid rules. If your governing documents haven’t been reviewed recently, they’re likely out of step with Illinois law. As such, they should be reviewed by a condominium attorney who can advise on how best to amend the governing documents to ensure they comply with applicable law.

2. The Developer Wrote Your Documents…And It Shows

Many condominium associations have declarations and bylaws drafted by the developer’s attorney with the developer’s interests in mind. These documents often:

Grant the developer outsized voting power, even after turnover
Limit the board’s ability to raise assessments
Contain vague or ambiguous language around maintenance responsibilities
Fail to provide robust enforcement authority

Developer-drafted documents are frequently silent or unclear on critical issues, like allocation of repair responsibilities for limited common elements or the association’s power to adopt fines. As boards transition from developer to owner control, failing to amend these documents can create ongoing headaches. Without clear authority, boards may be stuck with weak enforcement tools, unclear cost allocations, or ambiguous dispute resolution mechanisms.

3. Ambiguities Around Maintenance and Insurance Responsibilities

Illinois courts have consistently held that the declaration and bylaws are the controlling documents for determining maintenance and insurance obligations in the association. When these documents are unclear or contradictory, it can lead to disputes between unit owners and the condominium association. Ambiguities like this lead to legal uncertainty and litigation. Amending your documents to delineate maintenance responsibilities clearly—and aligning those responsibilities with insurance obligations— can help condominium associations avoid legal disputes.

4. Lack of Modern Restrictions and Provisions for Emerging Issues

Declarations drafted and recorded 15-20 years ago likely did not address short-term rentals, electric vehicles, and social media. Today, these issues are front and center.

Condominium association governing documents should address:

Short-term rentals (e.g., Airbnb restrictions)
Electric vehicle charging stations
Marijuana usage (especially in common elements)
Social media
Installation of surveillance equipment or smart doorbells (e.g., Ring Doorbells)
Charging for use of association amenities like rooftop decks or gyms

Failing to address these matters can leave condominium association boards scrambling to impose rules to address these issues. Amending the declaration and bylaws to address these common issues allows condominium association boards to stay proactive and ensures rules are enforceable.

5. The Governing Documents Lack Adequate Enforcement Mechanisms

The enforcement provision is a critical component of a condominium association’s governing documents. Without clear and enforceable compliance mechanisms, boards are powerless to uphold the rules they are obligated to enforce.

Many older declarations and bylaws lack:

A fine schedule or authority to levy fines
Procedures for issuing violation notices
The ability to suspend privileges for non-compliance
Clarification on the board’s right to collect attorney’s fees and costs in enforcement actions

Amending a condominium association’s governing documents to include enforcement powers gives the board the authority it needs to protect the condominium association. This is especially important for chronic rule violators who otherwise know how to exploit gaps in the governing documents.

Conclusion

A condominium association’s governing documents are the legal backbone of the community. If the governing documents are outdated, ambiguous, or silent on critical issues, the association may face significant legal liability, leading to costly litigation.

By proactively amending your governing documents, you give your board the tools to operate effectively, enforce rules consistently, and confidently make decisions. You also create a framework that reflects today’s realities, whether managing short-term rentals, adapting to new technologies, or clarifying maintenance and insurance responsibilities.

At Hirzel Law, we’ve helped associations throughout Illinois modernize their governing documents to reduce liability, minimize disputes, and foster healthier communities. If your association hasn’t reviewed its documents in the last 10 years, now is the time.

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.