Since Roman times Condominium Associations or Home Owner Associations have existed. Multiple people owning a common building. In the last 50 or so years these communities have become common place. Like most human endeavors, there are good factors and bad factors in living in a condominium complex. The good is that you own a home that can appreciate in value, receive tax benefits and that you are part of a larger organization that maintains the common elements like the roof, landscaping, etc. The bad is that unlike a single family home, there are rules and regulations governing one’s behavior.
These Associations are like municipalities and governed by a Board. Unit owners elect the members of the Board usually annually. The Board makes the decisions regarding day to day operations of the Association and is responsible for the upkeep of the common elements.
In Illinois the legislature and municipalities each have enacted regulations that each Association must follow. If not forbidden by the law, Association can enact rules that infringe on unit owners’ rights such as forbidding pets, forbidding decorating of windows, and the like.
As in anything, disputes arise. When disputes arise, litigation ensues and the courts need to decide the issues. Below are some of the common litigation lawsuits I have represented unit owners in.
Common elements an Association must maintain them.
Sometimes the dispute centers on what is a common element. Common elements are things that benefit more than one owner. Normally Declarations define what a common element is. Most people will agree that the roof is a common element. Thus being a common element the person living in the basement needs to contribute to repair the leaking roof that causes water to enter the top floor unit.
I have been in litigation over certain elements or systems are common element and then ultimately the Association’s responsibility: (1) to install automatic shut-off values on the sewer line to stop the sewer water from backing up into the basement units during storms; (2) to repair leaky skylight in the top unit’s bedroom; (3) to repair the radiant heat in concrete floor of a garden unit is a common element and not install baseboard heating units; (4) to tuck-point exterior walls to prevent water inflitration.
Noise disputes interfering with an owner’s peace.
In most Association the unit owners live close together and share common walls. Developers, cutting costs, do not care about acoustical engineering—i.e. constructing the walls to minimize the transmission of sound from one unit to another. Most people buying condominiums look at the unit a few times for a few hours and do not inquire about noise issues. It is only after being awaken at 2 in the morning by the upstairs neighbor insistent pacing or hearing the neighbor’s sub-woofer pounding out the bass sound from movies does one seek relief.
Most Associations have sound prevention policies requiring carpeting and quiet hours. Wood floors are notorious for transmitting noise to the unit below. In these situations the unit owner below can hear each thump from the footsteps above. For more on condominium floor noise, see also “The Acoustics of Floors in Condominiums”, by Marshall Long, Acoustics Today, January, 2007
Suing for nuisance is sometimes the only way to prevent this noise
Unfortunately Chicago doesn’t have noise standards in construction or for residential areas like many cities around America do. If there are no bylaws or rules of the Association preventing this noise, then Illinois nuisance law applies. Under nuisance law, one has the right to quiet enjoyment of one’s home. If a neighbor interferes with this quiet enjoyment by creating noise, smells, or other action that enter into the homeowner’s home, then the homeowner can sue to prevent this nuisance from continuing. Courts will prohibit the neighbor conduct if the judge feels that the neighbor’s conduct is unreasonable and interferes with your right to enjoy your home.
Types of noise litigation I have been involved in
I have litigated nuisance suits where: (1) the upstairs neighbor left Dobermans home during the day and the owner below heard their thumps as the dogs scampered around; (2) the upstairs neighbor installed new floors that were defective and installed improperly and didn’t have the required padding to minimize noise penetration; (3) a condominium owner across the street from old HVAC chillers utilized by an institution that emitted noise at all hours of the day; (4) the upstairs neighbor who worked in the evening and came home at midnight and watched action movies before falling asleep when the sun rose; (5) the commercial space below the unit changed from being a quaint wine bar to a college bar with a cranked up jukebox.
Failure to provide budgets and financial records
Illinois law requires that Associations yearly must provide budgets to each unit owners and also account how the money was spent for the previous year. Associations must allow a unit owner to view all financial and other records of the Association upon notice. Failure of the Association to allow a member to view its records, the law provides if a unit brings that Association to court to compel production, the Association must pay the unit owner’s legal fees. The City of Chicago likewise has an ordinance requiring the same thing.
I have been in suits against the Board demanding that the Board follow the law and supply budgets and reconciliations yearly. I have obtained court orders forcing the Association to turn over its financial records.
Failure for an owner to live up to the standards of the Association
Most Declarations restrict a unit owner uses for their premises. Operating a business in the unit is prohibited by Declaration. Keeping pets may also be prohibited. Having a noxious presence in the unit is likewise prohibited.
I have been in suits regarding keeping dogs in units that are disruptive to the neighbors. I have represented hoarders who completely filled their unit up from floor to ceiling with materials that the Association felt denigrated the general upkeep of the community. I have represented unit owners who had more than 7 adults living in a two bedroom unit.
Failure of the old guard to transfer control to the new directors
Associations are governed by the Board. Most bylaws allow special elections to remove the Board of Directors besides the annual elections. Ultimately elections are held. Like Congress occasionally the current power structure losses and new people are elected. Occasionally the old power structure does not leave quietly but require a court order to do so.
I have been in litigation regarding (1) the validity of elections removing directors; (2) determining the validity of proxy votes; (3) the refusal to seat a duly elected director; (4) turning over financial control of the organization.
Failure to properly enact fines against unit owners
If a unit owner violates a rule of the Association, the Association can enter fines against the unit owner to bring compliance with the rule. The fine needs to be reasonable. Before entering a fine, the Association must give the unit owner notice of the alleged violation, give the unit owner a right to have an hearing and have a lawyer present at the hearing before the Board enacts the fine. Ultimately the unit owner can have a judge determine whether the fine is reasonable and that the unit owner’s due process rights were protected.
I have litigated all aspects of assessing fines. Some of my cases involved the (1) imposition unilaterally of a $5,000.00 fine for smelling marijuana smoke coming from a unit; (2) the destruction of mailboxes by a unit owner’s guests; (3) barking dogs; scratches on elevators doors during move-in, and the like.
Collection of assessments and fines through evictions and liens
An association like the government needs money to pay its expenses. If a unit owner does not pay the required assessments or the special assessments, then the Association cannot survive. Illinois law give an Association two frequently used tools to collect its Assessments and unpaid fines. They are (1) eviction proceedings and (2) filing liens on the property.
Eviction proceedings are akin to a landlord evicting a tenant for non-payment of rent or fines. Here the Association takes the place of the landlord and moves for possession of the unit. If the Court finds that the unit owner has failed to pay the Assessments, then the Court will enter judgment and order the sheriff to displace the unit owner from the unit. Once the possession of the unit is turned over to the Association, the Association can rent it out and apply the rent to the back assessments and current assessments. Once the unit is current, and the tenant’s lease expires, then the property goes back to the owner. In addition the Association will obtain a monetary judgment against the unit owner and the Association can garnish the owner’s wages, back account and the like to collect the money owed. Also in eviction proceedings, if the unit is rented out by the owner, the court can assign the rent due under the lease to the association to pay the back assessments.
Filing a lien is where the Association prepares a lien and files it with the recorder of deeds of the county where the property is located. A lien prevents the owner from selling the property or refinancing the property.
I have represented owners in eviction proceedings. I have been in litigation where: (1) the owner assert the special assessment was improperly enacted and thus unenforceable; (2) the owner needed more time to pay the assessments due to change in employment; (3) the association’s prejudgment notice was defective as it was not mailed to the proper address.
Shifting of attorney’s fees.
Litigation is expensive. Most attorneys bill their client by the time devoted to the case. Most cases involve many hours of contested hearings to narrow the legal issues for trial. Attorney fees can easily exceed $10,000.00. Illinois law follows the American Rule stating that each side bears their own attorney’s fees unless there is a statute or contract stating otherwise.
Unfortunately for unit owners involved in litigation with the Association, Declarations normally require unit owners to reimburse the Association for all legal fees incurred by it in enforcing its rules; rarely do Declarations provide the Association reimburse the unit owner when the unit owner prevails over it. Additionally the state statutes for condominium evictions provide that the unit owner pay the Association’s legal fees. The one statute that allows unit owners to recoup their attorney’s fees from the Association is when the Association withholds assess to financial records requested by a unit owner.