When advising Illinois condominium associations, a common issue is confusion over what must be included in an Illinois condominium declaration. While many Illinois condominium association board of directors focus on enforcement provisions or leasing restrictions, Illinois condominium associations must ensure that their condominium declarations comply with the statutory requirements set forth in the Illinois Condominium Property Act (765 ILCS 605/1).
765 ILCS 605/4 of the Illinois Condominium Property Act sets forth the mandatory provisions that must be included in every Illinois condominium declaration. Every Illinois condominium declaration must contain six categories of mandatory provisions: (1) a legal description of the property and each unit; (2) the name and location of the condominium; (3) percentage interests in the common elements; (4) a description of common and limited common elements; (5) special provisions for add-on, conversion, and leasehold condominiums; and (6) any other lawful provisions consistent with the Act.
These provisions form the legal backbone of the condominium and, if drafted incorrectly or incompletely, can create significant problems for governance, financing, and litigation down the road. Below is a practical breakdown of what 765 ILCS 605/4 of the Illinois Condominium Property Act requires.
Legal Description of the Property and Units
The declaration must include the legal description of the parcel and of each unit. In most cases, the unit description is satisfied by referencing the unit number or symbol shown on the recorded plat. Together, the declaration and the plat define what is actually being owned. If there is ambiguity between the declaration and the plat, or if either document is incomplete, it can lead to disputes over boundaries, maintenance obligations, and insurance coverage. These issues generally arise in older buildings where amendments were recorded without properly updating the plat. When that happens, the association may find itself litigating what should have been clear from the outset.
Name and Location of the Condominium
765 ILCS 605/4 of the Illinois Condominium Property Act requires that the Illinois condominium declaration include the name of the condominium, which must contain the word “Condominium” (or be followed by “a Condominium”), as well as the city and county in which it is located. While this requirement may appear administrative, consistent naming and identification of the condominium ensures clarity in title records, lender documentation, and court filings. It also prevents confusion with similarly named community associations.
Percentage Interests in the Common Elements
The most consequential Illinois condominium declaration requirement is the allocation of percentage ownership interests in the common elements.
These percentages are not arbitrary; they are calculated based on the relative value of each unit compared to the property as a whole.
Once established, they are extraordinarily difficult to change and require the unanimous consent of all unit owners unless the Illinois Condominium Property Act provides otherwise. These percentages determine:
- each unit owner’s share of common expenses;
- voting rights in certain circumstances; and
- distribution of insurance proceeds and condemnation awards.
Common Elements and Limited Common Elements
The declaration must describe both the common elements and any limited common elements, along with how those limited common elements are assigned to specific units. Limited common elements, such as balconies, parking spaces, or storage units, are often the source of disputes between unit owners and associations.
If the declaration is vague about who has the right to use or maintain these elements, the board may be left to make difficult judgment calls that could lead to challenges. Boards should review how their declaration defines and assigns limited common elements and ensure that their rules and enforcement practices are consistent with that language.
Special Categories: Add-On, Conversion, and Leasehold Condominiums
765 ILCS 605/4 of the Illinois Condominium Property Act also imposes additional requirements on specific types of condominiums:
- Add-on condominiums must include provisions addressing future expansion.
- Conversion condominiums must disclose information related to the conversion of an existing building.
- Leasehold condominiums must include detailed information about the underlying lease, including its expiration date, renewal rights, and any unit owners’ rights to redeem or remove improvements.
These provisions are highly technical but very important. For example, in a leasehold condominium, the expiration of the underlying lease can have significant implications for unit ownership and marketability. Lenders, in particular, scrutinize these provisions closely. Illinois condominium associations operating under these structures should ensure that their declarations comply with these statutory requirements.
Flexibility for Additional Provisions
Finally, 765 ILCS 605/4 of the Illinois Condominium Property Act allows the declaration to include “such other lawful provisions” as the developer or owners deem desirable, so long as those provisions are not inconsistent with the Illinois Condominium Property Act. This is where most of the substantive governance provisions are found, such as restrictions on leasing, pets, and smoking. These provisions are important, but they are built on top of the mandatory framework established by 765 ILCS 605/4 of the Illinois Condominium Property Act.
Practical Takeaways for Illinois Condominium Boards
765 ILCS 605/4 of the Illinois Condominium Property Act is not something most Illinois condominium association boards discuss regularly, but it becomes central in several common scenarios:
- Amendments. Any proposed amendment should be reviewed against the existing Section 4 requirements to ensure consistency.
- Refinancing and sales. Defective or incomplete declarations can raise red flags with lenders and buyers.
- Developer turnover. Associations transitioning from developer control should confirm that the recorded declaration complies with the Illinois Condominium Property Act.
An Illinois condominium association that has any doubt about whether its declaration meets the statutory requirements should contact its community association attorney to conduct a full review of the declaration to ensure compliance. Identifying and addressing issues early can prevent far more costly problems later.
Conclusion
765 ILCS 605/4 of the Illinois Condominium Property Act is the foundation upon which every Illinois condominium association is built. While it may not receive the same attention as rules or enforcement policies, it governs the core structure of ownership, expense allocation, and property rights within the Illinois condominium association. Illinois add-on condominiums, conversion condominiums, and leasehold condominiums should consult their community association attorneys to confirm that their declarations meet the statutory requirements. All Illinois condominium associations should confirm that their declarations contain the statutory requirements set forth in 765 ILCS 605/4 of the Illinois Condominium Property Act upon turnover from the developer. If your Illinois condominium association has questions regarding its declaration, please contact the experienced Illinois condominium association attorneys at Hirzel Law, PLC.
