Illinois Court Ruling Clarifies How Limited Common Elements Must Be Defined

 

When a unit owner builds a deck without approval, most HOA boards anticipate that the judicial system will favor the association. Condominium association governing documents generally provide that any alterations and improvements to the limited common elements be approved by the board. But what happens when the board’s interpretation of “encroachment” is flawed, and there’s no evidence that the construction violated defined spatial boundaries?

That happened in Lake Barrington Shore Condominium Ten Homeowners Association v. May, 196 Ill. App. 3d 280 (2d Dist. 1990). This case remains an important reminder that associations must clearly define the boundaries of limited common elements in their governing documents.

 

Background: Enforcing Condominium Bylaws’ Architectural Approval Procedures

Lawrence May purchased his condominium at Lake Barrington Shores in 1985. Behind his unit was a 10-by-10-foot concrete patio, typical of others in the community. May removed the patio the following year and started constructing a larger 10-by-18-foot wooden deck. He did not yet have board approval for the expansion.

After the property manager intervened, May submitted a plan to the association’s architectural committee, which recommended approval. However, the board of directors rejected the plan, citing a policy of denying any variance that encroached on the common elements. The board said it would approve a deck that did not exceed the original 10-by-10-foot footprint, but May went ahead and completed construction.

The condominium association sued, seeking a mandatory injunction to force May to dismantle the deck. After a bench trial, the trial court ruled in favor of May. The Association appealed.

 

The Appellate Court’s Ruling: No Evidence of Impermissible Encroachment

On appeal, the Second District affirmed the trial court’s ruling, siding with the unit owner.

The Association relied on several provisions in its declaration and condominium bylaws, including:

• A general prohibition on altering common elements without written board approval.
• A provision requiring decks, patios, and balconies to follow board rules.
• A regulation stating that the board would not approve any variance encroaching on the common elements.

Importantly, the governing documents defined common elements as everything outside the individual units, including decks and patios, which were classified as limited common elements. These limited common elements were set aside for the exclusive use of the unit owner, even though technically part of the common elements as a whole.

The board claimed that the larger deck violated its policy against encroachments. However, the court rejected this argument as internally inconsistent, as the trial court wrote, “[a] deck is by definition a part of the common elements and, therefore, cannot encroach on itself.”

The Association failed to produce evidence showing that the 10-by-10 patio defined the boundaries of May’s limited common element area. No plat, exhibit, or declaration language proved that May’s exclusive-use area was limited to exactly 100 square feet. Without such evidence, the court concluded that the Association had failed to demonstrate any impermissible encroachment.

The Association also argued that owners could build decks of any size if May’s construction were allowed to stand. The court disagreed, reiterating that:

• Unit owners are still required to submit plans and seek approval;
• Architectural standards remain enforceable;
• Aesthetic uniformity can still be protected;
• Board denials must be based on enforceable standards, not vague assumptions.

 

Why This Case Matters: Lessons for Illinois Condominium Associations

While Lake Barrington Shores was decided in 1990, its lessons remain highly relevant today. Here’s why Illinois condominium associations should take notice:

1. A Clear Definition of Limited Common Elements Is Critical

The Association’s failure to define the exact boundaries of May’s limited common element was fatal. If a patio or deck is intended to be limited to a specific footprint, that limitation must be reflected:

• In the recorded declaration;
• On a plat of survey or site plan;
• Through clear, documented rules adopted under 765 ILCS 605/18.4(h) of the Illinois Condominium Property Act.

2. Architectural Control Must Be Grounded in Objective Criteria

The board’s justification for denial was based on a blanket rule against encroachments onto common elements. But since all decks are, by definition in the condominium’s bylaws, part of the common elements, that reasoning lacked a rational basis.

Boards should ensure that architectural review standards are:

• Clearly written;
• Consistently enforced;
• Tied to legitimate concerns (e.g., aesthetics, structural integrity, interference with others’ use of common areas).

3. Acquiescence to Prior Violations May Undermine Enforcement

While not dispositive in this case, the trial and appellate courts acknowledged that other units had larger decks and that May’s deck was architecturally consistent with others in the community. Boards should be aware that selective enforcement or tolerance of similar violations can create a precedent that weakens future enforcement efforts. If a board has allowed other unit owners to exceed the same footprint or construct similar decks, a court may view strict enforcement against a single owner as arbitrary or discriminatory.

 

Conclusion

The court’s decision in Lake Barrington Shores is a cautionary tale for condominium boards that rely on unwritten assumptions rather than written evidence. It underscores the importance of clearly defining limited common elements, adopting enforceable architectural standards, and consistently applying those standards.

Condominium associations should work with experienced legal counsel to:

• Review and update governing documents;
• Ensure plats and site plans reflect intended use boundaries;
• Adopt architectural guidelines that align with the Illinois Condominium Property Act; and
• Document all approvals and denials with clear reasoning and evidence.

At Hirzel Law, PLC, we represent condominium and homeowners associations throughout Illinois in all aspects of community association law, from covenant enforcement to litigation. If your board faces architectural disputes, boundary questions, or challenges to its enforcement authority, our attorneys are here to help you navigate the complexities and protect your community.