Please join us on October 8, 2013

The Village of Oak Park will be holding a presentation on how to secure financing and owner support for large projects on October 8, 2013 Village Hall, 123 Madison St. starting at 7:00 pm. A local condominium association will walk through the process they used to get new windows in their building. No advance registration or fee is required. For more information contact the Housing Division at 708 358-5410 or email housing@oak-park.us

Ask an Attorney – Gabriella Comstock

QUESTION:

I live in a condo building and am also a board member.

A new renter moved in to the unit below ours, last month. The couple smokes 4-5 times every day, mostly in the balcony. We are non-smokers and are really uncomfortable with our two year old having to take in the secondary smoke.

Our balconies are wood and we are not allowed to barbecue in the balcony, it being a fire hazard. The rules say smoking is allowed only inside of the unit.

The first time I saw the couple smoking in the balcony, I told them they are not supposed to smoke in the balcony. To which the lady replied they pay too much rent not to be smoking there. They keep smoking there adamantly. Sometimes, they smoke inside with windows open, still the smoke comes in our unit. They have an ashtray full of butts sitting in the balcony all the time, with a lighter next to it.

I have informed the management company as well as other board members of the situation. No response from anybody.

I called the owner. He is not much help either. Our regulations ask the owners who rent their units to submit a copy of the lease to the association. This owner has not submitted the lease to the association.

What can I do to stop these addicts from polluting the air in my home?

Thank you in advance,

ANSWER:

The Board of Directors for the Association owe a fiduciary duty to each member of the Association. As part of this duty, they are required to enforce the documents of the Association as drafted. I would submit to the Board, in writing, your complaint.  I would continue to submit the complaint to the Association.  As a board member, I would remind the Board that it cannot selectively enforce the restrictions as this may create issues later for the Association when enforcing the  governing documents.  While I would expect the Board to have you recuse yourself when they consider if a violation occurred, they still need to address the complaint and determine if a violation has occurred. My concern is that the Board and management may breaching their duties and statutory obligations under the Condominium Property Act and the Illinois Community Association Manager Licensing Act.

The Board and management will likely have the best luck with getting the Owner to get his tenants to comply. Yet, if your complaints continue to fall on deaf ears, you may need to seek legal advice to determine your personal rights. As a Board member, be sure that the Board is addressing all complaints. If it is not, you may want to consider whether you should remain on the Board.

Disclaimer

Gabriella Comstock of Keough & Moody, P.C. (“Keough & Moody” or “we” or “us”) provides content for the Village of Oak Park Condo Corner for informational purposes only. The information contained in this communication is not legal advice.  Communication with us through the Village of Oak Park Condo Corner, or by other means, does not create an attorney-client relationship between us. Please do not disclose any confidential information to us in response to this communication, or otherwise, because we will have no obligation to keep that information confidential unless and until a formal attorney-client relationship is established with you.

Ask An Attorney – Gabriella Comstock

QUESTION:

Our new board is being harrassed for just about everything from unit owners that happen to be ex-board members.  Examples are: not following rules and regulations that they themselves made for the association, shredding financial documents, sending antagonizing emails to other owners ( through an email thread that a new board member created for communication ). Can anything be done to stop the harassment? Even though we are a mix board of races, I do feel this may also  be racially motivated.

ANSWER:

This sounds like a very difficult situation. I recommend that the Board of Managers do everything possible to make sure it is running the Association as a corporation. For example, the Board controls its meetings. Make sure that all meetings promote conducting business and avoid interruptions. Designate a person to be in charge of controlling the group. It is often best to have the board meetings off-site. As always, be sure to enforce the terms of the governing documents. When complaints are made about an Owner’s conduct, investigate it and enforce the restrictions, in a proper manner. There is not much you can do to prevent others from talking. However, the Board can be sure that it stays focus on the business and work it must complete and not let the e-mails side track the Board. Like anything, the Board should pick its battles.  Lastly, it is not clear to me how non-board members can shred financial documents. If this was done when the person was on the Board, it may be a breach of the board member’s fiduciary duty. Yet, the Board should seek the advice of legal counsel to determine the Association’s rights and whether it should pursue the matter further. If you believe that discrimination is involved, the persons who believe that they are being discriminated against, should determine their legal rights.

This will not be an easy problem to solve and it will not be one that can be fixed overnight. If the Board members can stay focused and follow the proper procedures, with time, it will get better. Depending on your budget and size, the Board may also want to consider the assistance of an outside professional management company.

Disclaimer

Gabriella Comstock of Keough & Moody, P.C. (“Keough & Moody” or “we” or “us”) provides content for the Village of Oak Park Condo Corner for informational purposes only. The information contained in this communication is not legal advice.  Communication with us through the Village of Oak Park Condo Corner, or by other means, does not create an attorney-client relationship between us. Please do not disclose any confidential information to us in response to this communication, or otherwise, because we will have no obligation to keep that information confidential unless and until a formal attorney-client relationship is established with you.

Ask An Attorney – Gabriella Comstock

Question:

I’m aware of at least one attempt to amend the IL Condominium Property Act to ban smoking in private condos, put forward by State Rep. Sara Feigenholtz (Chicago): http://chicagoagentmagazine.com/a-smoke-free-world-for-illinois-condos/ She proposed the amendment last year but I can’t find anything regarding the outcome, so I presume it died in committee, but please advise if you know more. Here’s another article on the subject: http://chicagocooperator.com/articles/506/1/To-Ban-or-Not-to-Ban/Page1.html Please note the following: This past January, Feigenholtz, along with  fellow Rep. Kelly M. Cassidy (D-14th District, Chicago), introduced a bill that would give Illinois condo associations the legal authority to ban smoking in the private units of multifamily buildings.  The Smoke-free Illinois Act axed smoking in public spaces and in private businesses, but private residences were exempt, since trying to legislate people’s behavior in their own homes strikes many – even staunch anti-smokers – as unfair, and possibly even unconstitutional, falling as it does right on the line between public health and private property. This seems to indicate that it’s illegal to ban smoking in private residential units, but please confirm.

ANSWER:

The bill did die. The following is a link to indicate the same.

http://www.ilga.gov/legislation/BillStatus.asp?DocTypeID=HB&DocNum=4134&GAID=11&SessionID=84&LegID=63434

For now, we will wait and see to see if it comes back up on our radar.

Disclaimer

Gabriella Comstock of Keough & Moody, P.C. (“Keough & Moody” or “we” or “us”) provides content for the Village of Oak Park Condo Corner for informational purposes only. The information contained in this communication is not legal advice.  Communication with us through the Village of Oak Park Condo Corner, or by other means, does not create an attorney-client relationship between us. Please do not disclose any confidential information to us in response to this communication, or otherwise, because we will have no obligation to keep that information confidential unless and until a formal attorney-client relationship is established with you.

Final Summer Condo Network Presentation – June 11, 2013

Attention Condominium Owners and Boards; The Association of Condominium, Townhouse and Homeowners Associations (ACTHA) is partnering with the Village to give a series of informative presentations at Village Hall, 123 Madison St. starting at 7:00 pm. No advance registration or fee is required.

June 11, 2013 – Collections and Foreclosures Presenters: Attorney John Bickley from Kovitz Shifrin Nesbit and Paul Gioia of ACM Community Management

Next presentation will be on September 10, 2013 and will be on Disaster Preparedness.

For more information contact the Housing Division at 708 358-5410 or email housing@oak-park.us.

Request from a Fellow Condo Association

“We are a small 10-unit, self-managed association in Oak Park. We amended our declarations and bylaws in 2009 to prohibit owners from leasing their units at any time. We are now re-considering this amendment. We are concerned about the potential impact on property values, risk / liability, administrative burden for the Board, and quality of life / community if we make the change and allow renters. We have been actively soliciting the input of local experts (legal professionals, property managers, Village officials, etc.) on these impacts, but would like to also collect input from other similarly sized organizations that have gone through what we are evaluating.

 

Are there any small Association Board members our there we could talk to about their experiences with renters (either transitioning from no-leasing to allowing leasing, or just simply dealing with leasing over the years)?”

 

 

Thanks for your help,

 

Chris Rooney

North Parkview Condominium Association Secretary

crooney29@hotmail.com

Ask An Attorney

Don’t forget to send in those questions to housing@oak-park.us please put Ask an Attorney in the subject line.  Don’t forget you can ask Ms. Comstock questions at the April 9, 2013 Condo Network Session.

QUESTION:  
I have a question re: limited common element.  In the IL Condo Act, it’s defined as follows:

PROPERTY (765 ILCS 605/) Condominium Property Act.(765 ILCS 605/2) (from Ch. 30, par. 302) 

    Sec. 2. Definitions. As used in this Act, unless the context otherwise requires:

     (s) "Limited Common Elements" means a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities.

I’ve been on the Board of Directors of our Condo Association for roughly 15 years.  Since our building has no balconies, terraces, patios and parking spaces or facilities, in the early days, the Board’s interpretation of limited common element was that the responsibility of unit owners ended at the paint on their walls.  Everything else was considered common element, and thus, the responsibility of the Association.  When we changed property managers about eight years ago, he suggested that we take a more broad interpretation of limited common element to include anything that solely services a particular unit, to include pipes, conduit and other utilities within the walls, above the ceiling or below the floor.  Is this the correct interpretation, based on IL case law?

 ANSWER:

Limited common elements can include areas other than a balcony, terrace, patios and parking spaces.  A common element is an area which can be used and enjoyed by all owners. Whereas, a limited common element is an area, that is not part of a Unit, but is used and enjoyed by less than all of the Owners.  Depending on the language of a declaration, pipes and other utilities can be considered a limited common element. When determining if an area is a common or limited common area the first question the Board should ask is who can enjoy this area. If the answer is less than all of the owners it is likely that the area is a limited common element.  Before determining an area is a limited common element, it is important for a Board to be certain that the area really only serves less than all of the owners. This is especially true when determining how pipes should be classified.

Disclaimer

Gabriella Comstock of Keough & Moody, P.C. (“Keough & Moody” or “we” or “us”) provides content for the Village of Oak Park Condo Corner for informational purposes only. The information contained in this communication is not legal advice.  Communication with us through the Village of Oak Park Condo Corner, or by other means, does not create an attorney-client relationship between us. Please do not disclose any confidential information to us in response to this communication, or otherwise, because we will have no obligation to keep that information confidential unless and until a formal attorney-client relationship is established with you.

Don’t Miss April Presentation!!!

Attention Condominium Owners and Boards; The Association of Condominium, Townhouse and Homeowners Associations (ACTHA) is partnering with the Village to give a series of informative presentations at Village Hall, 123 Madison St. starting at 7:00 pm. No advance registration or fee is required. For more information contact the Housing Division at 708 358-5410 or email housing@oak-park.us.

April 9, 2013 – Development and Enforcement of Rules and Regulations including Smoke free housing 

Condo Network Sessions Starting back up

Attention Condominium Owners and Boards; The Association of Condominium, Townhouse and Homeowners Associations (ACTHA) is partnering with the Village to give a series of informative presentations at Village Hall, 123 Madison St. starting at 7:00 pm. No advance registration or fee is required. For more information contact the Housing Division at 708 358-5410 or email housing@oak-park.us.

March 12, 2013 – How to conduct a one hour Board meeting

April 9, 2013 – Development and Enforcement of Rules and Regulations including Smoke free housing

May 14, 2013 – Hiring a Management Company

June 11, 2013 – Collections and Foreclosures

October Rental Session

Did you miss the October Rental Session:  Watch it here: Condo Network Session 1.   Download Rental Presentation Handouts

If you have ideas for future presentations, email

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