When a homeowner requests an exception to architectural restrictions, HOA boards often face a difficult decision. Granting a variance can lead to disputes with neighbors and potential litigation. A recent Illinois appellate court decision provides helpful guidance on when a community association board can approve a deviation from restrictive covenants without a vote of the membership.
In James A. Blazina Revocable Trust v. Tracey A. Benck Trust, 2021 IL App (2d) 200387-U, the court addressed two critical issues: (1) whether an amendment to a declaration was valid despite the absence of recorded owner signatures, and (2) whether a board has authority to grant a deviation from a covenant without a vote of the membership. The court answered both questions in favor of the Illinois community association. This article will discuss the Illinois appellate court’s decision and provide practical guidance for Illinois community associations.
Background of the Illinois Community Association Pool Dispute
The dispute arose in an Illinois homeowners association where the governing documents prohibited the construction of in-ground swimming pools anywhere other than the rear yard of a lot. However, one owner’s property consisted primarily of wetlands, making it impractical to construct a pool in the rear. The owner sought and obtained the association’s board’s approval to construct a pool and cabana on the side of her lot pursuant to a “deviation” provision in the declaration.
A neighboring owner objected and filed suit, seeking to enjoin construction. The plaintiff advanced two primary arguments that (i) the amended declaration, which contained the deviation provision, was invalid because it was not properly adopted and (ii) even if valid, the board lacked authority to grant a deviation without approval from two-thirds of the owners. The Illinois trial court dismissed the complaint, and the Illinois appellate court affirmed.
The Illinois Appellate Court’s Analysis of the Illinois Community Association Dispute
The plaintiff argued that the 2013 declaration was invalid because the amendment procedure required the actual signatures of two-thirds of the owners to be recorded, and those signatures were not recorded. Instead, the association recorded an affidavit certifying that the required approvals had been obtained. The appellate court rejected the plaintiff’s argument. Importantly, the declaration also provided that a “recorded certificate shall be deemed conclusive evidence” of compliance with the amendment procedure. The court emphasized that requiring every owner’s signature to be recorded would make the “certificate” language meaningless and create unnecessary inefficiency. Accordingly, the amendment was valid.
The more significant issue for the Illinois community association was whether the board had authority to grant a deviation from the covenant. The plaintiff argued that because the declaration referred to action by “the Association,” any deviation required approval by the entire membership, not just the board. The appellate court disagreed and found that (i) the declaration consistently used the term “Association” to mean the association acting through its board and (ii) Illinois law recognizes that associations operate through boards of directors. Because the declaration expressly authorized deviations where “causes, difficulties, or hardships” existed, the board acted within its authority in approving the pool.
Lastly, the plaintiff alleged that the board breached its fiduciary duty by approving the deviation. The court rejected this claim because the board followed the procedures outlined in the declaration, its actions were proper and within its discretion.
Key Takeaways and Practical Guidance for Community Associations
This case provides several important lessons for Illinois community associations:
- Certificates Can Satisfy Amendment Procedures
If a declaration allows for a recorded certificate to serve as proof of approval, associations can rely on that mechanism rather than recording every owner’s signature. Illinois community associations should carefully review their governing documents to determine the required procedures for amendments.
- Boards Have Broad Authority to Act for the Association
Illinois courts recognize that associations act through their board of directors, not through direct votes of all members in every instance.
- Deviations Are Not Amendments
Associations can grant variances or deviations (if authorized by the declaration) without triggering formal amendment procedures. Illinois community associations should carefully review their governing documents to determine whether deviations are permitted. If the declaration includes a deviation or variance clause, ensure the board understands the scope of its authority and the standards that must be met (e.g., hardship, difficulty, or unique circumstances).
- Document the Decision-Making Process
If deviations are permitted under the governing documents, Illinois community association boards should create a clear record showing: (i) the basis for the deviation; (ii) the plans submitted and reviewed; and (iii) the rationale for approval. If the board’s decision is challenged and litigation ensues, this documentation will be crucial.
Conclusion
The Illinois appellate court’s decision in Blazina reinforces that Illinois community associations function through their board of directors and within the framework of their governing documents. By affirming the dismissal of the plaintiff’s claims, the Illinois appellate court confirmed that (1) recorded certificates can satisfy amendment requirements when authorized by the declaration, and (2) an Illinois community association board of directors may grant deviations, if permitted by their governing documents, without converting those decisions into formal amendments requiring a membership vote.
More importantly, the court drew a clear and practical distinction between a deviation and an amendment. A deviation provides flexibility to address unique property conditions without undermining the integrity of the covenant scheme. An amendment, by contrast, changes the rules for everyone. Conflating the two would paralyze boards and make routine governance unworkable. For Illinois community associations, Blazina is a reminder that courts will enforce governing documents as written and defer to reasonable board action taken in accordance with them.
If your association has questions about interpreting its governing documents or handling architectural requests, the Illinois community associations at Hirzel Law, PLC can help ensure that your board’s decisions are both defensible and effective.
