Everyone remembers our parents’ favorite retort: “When you’re 18 and on your own, you can do what you want, but when you’re in my house, it’s my rules” or something similar. No matter what we wanted to do as young people, there was always someone who had to give us permission to charge ahead. Many people (including Boards) think that being in a Condominium Unit will free you from someone else’s permission before you do what you want to do. In fact, that’s not the case. There is a whole host of various permissions and permission granters built into community living, some obvious and others not so, that we will discuss in this article.
The Elephant In (or Outside of) The Room
The most common type of permission that arises in community living is the permission required in the covenants. Condos, townhomes and single-family community association homes all have a declaration of covenants that contain the various restrictions that govern an owner’s occupancy of their home. Often, these covenants will have specific permissions that have to be obtained before owners can move walls, change paint colors or deviate from the common scheme. In many single-family home associations these regulations may be enforced by a committee of the Board, such as an architectural committee. Owners should check carefully to confirm whether any changes they make, or rather wish to make, are acceptable under the covenants. Even more importantly, owners must check first with their Board or applicable committee to see if there is a specific application process, form or set of disclosures necessary for Board review and approval before any work can take place.
In our younger days, acting without permission might get you grounded. It can be more severe if an owner does not follow the proper procedure and obtain the required approval before undertaking structural alterations. Many declarations provide Boards with rights to seek injunctive relief, require removal of non-conforming or unapproved additions or alterations, including seeking legal fees and costs to enforce compliance.
In Condominium Associations, owners often forget that anything outside of their unit is not their own to change, expand or alter without specific Board approval. As seasons change many owners start to enter the common elements and garden to their heart’s content, but such unauthorized gardening may be improper unless the owners get specific permission from the Board to do so.
The Board’s authority is not limitless as some types of permission are hard to deny. Owners who need to construct special access items such as ramps, disability-access items and other accommodations must still request the ability to do so before construction but Boards are, generally, only allowed to decline if the installation is unreasonable. This, of course, requires a case-by-case analysis in consultation with the Association’s attorney and, potentially, a structural engineer.
Good Fences and Good Neighbors
Sometimes, the permission issue arises with neighboring properties. In the city and in increasingly common mixed-use suburban properties where residential and commercial spaces are mixed, the Board may be the one who needs to ask before seeking forgiveness. Mixed-use developments often have a set of covenants and easements that bind the various types of neighboring properties to each other. These cross easements often require a Condominium Association to seek permission from the commercial properties before making exterior changes, altering parking or walkways and, in some cases, making external décor changes to the condominium property. The pendulum swings both ways in that these restrictions often obligate the commercial owners to seek permission from the residential Boards when changing external signage, constructing or combining units or allowing certain kinds of commercial tenants. Sometimes, the restrictions are quite significant and may even require permission before changing types of insurance. The key to a happy mixed-use relationship is a keen understanding and familiarity with the mutual restrictions.
Municipalities Matter, Too
Association Boards must also be cautious about obtaining proper municipal permission for certain actions. Many larger developments, and some Condominium Associations, are subject to development agreements with the municipality in which they sit. These agreements, often called Planned Unit Developments, may have a set of covenants that restrict changes, limit development and may place restrictions on what an Association (or its owners) is allowed to do at any given time. Associations may have to obtain specific permissions from the local building officer or zoning officer before making certain changes. Further, many declarations have limitations in them that require municipal approval for certain amendments, such as changing exterior maintenance obligations or other requirements. Usually, these restrictions require the municipality to sign off and approve of a change to the declaration, which in turn requires that the Association seek approval prior to recording a document change. Boards must be careful to obtain these permissions if necessary as failure to do so may invalidate declaration or covenant changes made without proper approval.
Owners’ Voices Count, By The Numbers
Unit Owners are also a source of necessary approval for certain Association actions. Most all declarations’ major terms can only be changed by a required majority vote of Unit Owners or members and cannot otherwise be changed by Board action alone. Though Boards may amend rules and regulations in a condominium property without owner approval, those changes cannot reduce or restrict rights granted in the declaration. Illinois courts have been clear that rules may not remove rights granted in declarations.
Owners in condominium and some common interest associations, depending on the Bylaws, may have the right to attempt to set aside or limit certain Board action. For instance, budget increases or special assessments in Condominium Associations may be subject to an owner petition and owner vote to set them aside if the total budget, plus the increase or special assessment would result in the budget being 115 percent of the prior year’s total budget. This is not to say that Condominium Owners must approve a special assessment, as the Illinois Condominium Property Act was amended to prohibit that, but owners may petition and vote to reject a major increase. Further, some declarations for any type of Association may have a provision that requires owner approval for certain expenditures that exceed a threshold amount or are for the purposes of adding on to or improving the common elements. Declarations will say specifically whether an owner vote is required for certain types of expenditures and the Board should be careful to comply with those requirements. Failure to do so may render the expenditure invalid.
When Mother Knows Best
A common question from Boards is what they must do when a permission request is given to them. Generally, covenants and rules may contain a specific timeline in which the Board must receive, review and rule on a request. Some declarations state that an ignored request is automatically deemed approved, though this is a less common term. If a declaration or rule states that the Board must act in a certain time, then the Board must act and lack of upcoming meetings, delays or other intervening factors are not necessarily an excuse for the Board if the Governing Documents have an automatic approval provision. Boards should be careful to know what their Governing Documents provide and work with their managers and committees to implement a procedure for handling permission requests. Alternatively, if the Governing Documents are silent on the time in which a Board must review a request, it is recommended that it should be completed within a reasonable time frame that is no longer than until the next meeting as this helps to move owners’ requests along and keeps communities running smoothly.
Finally, a key consideration for Boards is how to deny a request. This depends greatly on a community’s specific Governing Documents, but the key word remains reasonableness. Boards are vested with great discretion in how they manage the affairs of the Association and, though that discretion often will not be set aside if a court is called to intervene, it is possible for Board decisions to be challenged. The function of the Board is to act reasonably and exercise its discretion so that decisions are not likely to be overturned if challenged. The key concept in tandem is reliance on professional guidance where appropriate.
Boards are not presumed under Illinois law to have specialized professional knowledge in technical areas, including architecture, engineering and law. Boards may be presented with permission requests for additions, alterations or changes to the property that involve the structural integrity of the building, encroachments into the commons or accessibility requests. Many of these may require the evaluation of a qualified professional to answer technical questions. For instance, will removing this wall compromise the support given to the upstairs unit? Will installing this type of pool change the grading in the yard and cause excess runoff to adjoining buildings? Does the owner have the legal right to construct a gazebo adjacent to the unit? These are all questions that may require professional input.
A Board would be reasonable to reject a permission request, for example, if a qualified professional concludes that granting the request will pose major problems for other units or the common elements.
What about Master Associations?
Some properties are subject to Master Associations and Condominium Associations, both with specific covenants. Usually, the Governing Documents will specify which Association is responsible for giving permission for various types of changes an owner may want to make. However, the lesson we learned as children remains true: Asking the other if Mother says “no” will only get you in trouble!