Condominium & Association Counsel

The year has a shape, and counsel works along it. Budget season brings the 25-day owner notice, the reserve question and the 115 percent petition rule if assessments jump. The annual meeting needs a notice, a quorum and an election that can withstand a challenge. Through the year there are delinquencies to move through the statutory sequence, violations to take through notice and hearing, and vendor contracts to read before they renew on their own. Every sale generates a resale disclosure package the association must furnish within 30 days. Under all of it sit the declaration and bylaws, which usually need amending about once a decade. We handle each of those, and the disputes that a few of them become.

In Illinois, two state statutes and the association's own documents. Condominiums are governed by the Condominium Property Act; townhome and homeowner associations by the Common Interest Community Association Act, which exempts the smallest communities unless they opt in. Chicago adds its own condominium ordinance on top. Below the statutes sit the recorded declaration, the bylaws and the rules the board adopts, each subordinate to the one above it, and the recorded documents of a particular community are often older than the statute and contradict it. The first task in any matter is deciding which text controls the question actually in front of the board.

In the order the statute prescribes, because each step depends on the one before. The assessment is a lien on the unit from the day it falls due. In Illinois the association's main tool is the one landlords use: after a 30-day written demand, it can sue for possession of the unit, take it over and rent it out until the account is paid, with its attorney fees added to what the owner owes. If a mortgage lender forecloses first, the buyer at the sale must pay up to six months of pre-foreclosure assessments before the association's lien is extinguished, and the rest is written off. We apply the board's adopted collection policy to every owner alike, because the exception granted to one delinquent is the defense raised by the next.

Yes, when enforcement follows the governing documents and the law. We advise boards on architectural and use restrictions, fines and hearings, and selective-enforcement risk, and we represent associations when a covenant dispute cannot be resolved short of formal proceedings. An owner challenge usually turns on how consistent and how well documented the enforcement was.

It is the point at which the developer's board hands control to one the owners elect, and in Illinois it has a deadline: within 60 days after three-quarters of the units are conveyed, or three years after the declaration is recorded, whichever comes first. The developer then has 60 days to deliver the governing documents, the financial records and the plans, together with the association's funds. The window matters because the new board has four years from discovering a construction defect to sue over it, and no claim at all more than ten years after the work was done. A transition study pairing an engineer with a forensic accountant, commissioned in the first months of owner control, is how a board learns what it has inherited while it can still do something about it.

Because the manager is not a lawyer, the directors are not the client and the insurance does not cover what it looks like it covers. The management agreement will say in terms that the manager gives no legal advice. Counsel represents the association as an entity, which protects directors who follow advice from claims that they acted on their own account. Directors' and officers' policies commonly exclude knowing violations of the statute and the documents, so a board that fines without a hearing or ignores a petition for a budget vote may be uninsured for the result. The Illinois act also shifts the association's attorney fees onto a delinquent owner, which means counsel on a collection matter is frequently paid by the person who made it necessary.