Differences and disputes happen. We’re only human, and that’s why laws and rules are in place. But, the federalist system of government we use in this country is far from the most efficient system. Layers and layers of laws, statutes, and regulations fall on associations, and it's quite literally impossible to keep up. First there’s the condominium declaration and bylaws. There are the house rules, which can be separate from the bylaws. Then there are municipal codes and ordinances that can impact anything from how many trees need to be on the association’s property to plumbing to civil rights issues. On top of that, there are state laws and statutes drafted and passed by the Illinois legislature, and almost constant changes and amendments made; on top of that, there are federal laws and regulations.
Look to the Law
Associations and their counsel need to keep abreast of all of these, because they all affect how the HOA can and should conduct its everyday operations and relationships. What might seem fair on a federal level could be more complicated on a state level, and if your documents are not up to date, what might seem like a silly legal issue can easily spiral out of control. In order to avoid trouble and keep the peace, association and building boards should at least know the general lay of the land, and what kind of legal landmines are out there.
The Condo Act
Compared to other states, Illinois has a pretty clear picture when it comes to laws regarding condominiums thanks to the Illinois Condominium Property Act (ICPA), also known as the Condo Act. At its core, the Condo Act provides a blueprint for associations, and standardizes many important procedures.
Mark Rosenbaum, a principal attorney at Fischel & Kahn in Chicago describes the law this way: “The Condo Act can do one of three things. It can say the statute controls no matter what your declaration says. If it says something different, the declaration is void. If the declaration doesn’t say anything about a rule, the statute can say, ‘here’s a rule that fills in the blank.’ And it can say, ‘well if the declaration says something, the declaration rule controls over the statute.’ So you have three flavors of this—mostly it’s the first flavor—which is that the statute controls over a contrary provision of the declaration, but that isn’t always true, it’s true about 90 percent of the time. If that statute is changed, and it changes how something is done in declarations. The statute is almost always going to control, and you have to ignore what the declaration says. A good portion of Illinois’ condo act is really procedural. It isn’t substantive. It doesn’t say how many dogs you can have in a unit, and things like that. That’s left to declarations.” If you're curious about whether state law trumps association’s declarations, the simple answer is that it depends, and there's no obvious way to tell unless you memorize the Condo Act.
Even though most of the Condo Act clarifies simple procedural processes for boards and associations, it's still important to keep up to date. “There are changes in the law on condo associations. And those would be amendments from time to time to the Illinois Condominium Property Act, or the Illinois Common Interest Association Act and those deal with those specific organizations. In the past there have been major amendments to how assessments are adopted in an association. It's really important those bodies adopt. If you don't follow the right procedure, there may be a legal defect in how that budget was adopted. If you didn't collect it, then the owner has a defense that you didn't collect it properly,” says Michael Kim, attorney at Michael C. Kim & Associates in Chicago