Amending HOA Declarations in Illinois: What Recent Court Cases Reveal

When can a community association amend its declaration? Must it wait for the end of the initial 20-year term before making changes? Does amending an HOA declaration take effect immediately upon recording, or must it meet specific procedural requirements? These were the questions at the center of a long-running dispute in Markwick v. Homeward Glen Homeowners Association, 2013 IL App (2d) 120624-U, and an earlier decision in Illini Federal Savings & Loan Ass’n v. Elsah Hills Corp., 112 Ill. App. 3d 356 (1983).

Together, these cases provide guidance for Illinois community associations seeking to amend their governing documents. Homeowners Associations must understand the legal frameworks and procedural prerequisites that govern declaration amendments, or they risk costly and protracted litigation.

Background of Markwick: The HOA 20-Year Declaration Rule

You may have heard of the HOA 20-year declaration rule. That is, most HOA declarations in Illinois contain provisions stating that they will remain in effect for a specific period, often 20 years, after which there will be an automatic renewal of HOA covenants unless amended or terminated by a supermajority of owners. The declaration in Markwick followed this structure. The declaration provided:

The covenants and restrictions… shall run with and bind the land… for a term of twenty years… [and then] shall be automatically extended for successive periods of ten years unless an instrument signed by the then owners of 2/3 of the lots… has been recorded agreeing to change said covenants… provided, however, that no such agreement of change shall be effective unless made and recorded one year in advance… and unless written notice… is sent… at least 90 days in advance of any such action.

In the late 1990s, the residents of the Homeward Glen subdivision attempted amending its HOA declarations with more “congenial” provisions. That effort resulted in a 1996 amendment and a 2004 supplement affirming its validity. However, questions arose about whether the required notice had been given under the original declaration. By 2007, a dispute emerged over which version of the declaration controlled: the original, the 1996 amendment, or the 2008 covenants based on the 1996 version.

As litigation ensued, the homeowners took a more radical step. In 2012, more than two-thirds of the lot owners voted to abolish all declarations altogether. They provided 90 days’ notice of the vote, recorded the amendment in accordance with the declaration’s terms, and set an effective date one year later.

The trial court granted summary judgment* to the Association, holding that the 2012 amendment was valid and mooted all disputes over prior versions of the declaration. The appellate court affirmed that the original declarations had automatically extended in 2007–08 and remained in force, as the 1996 and 2008 amendments failed to meet procedural requirements and overwrite the automatic renewal of the HOA covenants. However, the 2012 amendment was timely, valid, and effective as of February 24, 2013.

*Summary judgement is the resolution of a case without a trial.

Background of Illini Federal: Automatic Renewal of HOA Covenants

In reaching its conclusion, the Markwick court expressly relied on the earlier decision in Illini Federal Savings & Loan Ass’n v. Elsah Hills Corp., which interpreted a nearly identical amendment clause. In Illini Federal, the declaration allowed amendments by ¾ of the lot owners, but did not expressly state when those amendments could occur.

There, the court rejected two competing interpretations, one that required waiting 20 years to amend and another that allowed immediate effectiveness upon recording. Applying the “last antecedent rule,” the court held that the amendment clause applied only to the automatic renewal period, not the initial 20-year term, and that amendments took effect only after satisfying the procedural prerequisites.

In both cases, the courts concluded that:

• Per the HOA 20-year declaration rule, amendments are not permitted during the original 20-year term unless expressly authorized.
• Once the initial term expires, the declaration automatically renews unless an amendment is both:
  • Signed by the requisite majority of owners, and
  • Properly noticed and recorded one year in advance of the effective date.

Why This Matters for Amending HOA Declarations in Illinois

The lesson of Markwick and Illini Federal is straightforward but essential: when amending HOA declarations, community associations must strictly follow the procedures set forth in their governing documents. Courts will not infer amendment rights that are not expressly granted*. Moreover, amendments that are not properly noticed and recorded will be deemed invalid.

*Expressly granted is a phrase that indicates something has been clearly and explicitly defined in the governing documents.

Here are the key takeaways for Illinois community associations:

1. Respect the 20-Year Declaration Rule in HOA Declarations

If the declaration specifies a 20-year initial term with no amendment provision, that term is inviolable. Amendments cannot be made until the first renewal period begins, thus, failing to adhere to the 20-year declaration rule will only put you at risk for litigation and unnecessary costs.

2. Follow HOA Notice and Recording Rules

Declarations often require that proposed amendments be noticed to all owners at least 90 days before a vote and recorded one year before becoming effective. Failure to comply with these procedural safeguards will invalidate the amendment.

3. Automatic Declaration Extensions Can Be Interrupted

The automatic renewal of HOA declaration covenants can be interrupted, but only if the required vote, notice, and recording occur within the timelines spelled out in the declaration.

4. HOA Boards Should Document Everything

To protect against future litigation, associations should retain evidence of:

• The exact text of proposed amendments.
• The date notice was sent to owners.
• Proof of delivery (certified mail, email logs, etc.).
• Signatures or ballots showing owner approval.
• The date the amendment was recorded.

Failure to preserve this documentation can leave an amendment vulnerable to challenge—even decades later.

Conclusion

The Markwick case provides clarity on amending HOA declarations in Illinois, including when and how a community association may abolish its declaration. It confirms that strict compliance with the declaration’s notice and timing provisions is mandatory. If even one step is missed, an amendment may be void.

At Hirzel Law, PLC, we help condominium and homeowners associations navigate the complexities of amending declarations and bylaws. Our attorneys regularly review governing documents, advise boards on amendment procedures, and defend associations in litigation over declaration and bylaw enforcement. Whether your community is updating its declaration, adopting new restrictions, or facing a legal challenge, we are here to help you.