Q. Can a member of the association sue his board of directors if the board does not force a landlord to keep up the maintenance of his units?
—Irritated in Itasca
A“The short answer to this question is ‘In most cases, probably not,’” says attorney Barry Kreisler, principal founder of the Chicago-based law firm of Kreisler Law P.C. “The board of an Illinois condominium association is responsible for maintaining the common elements of the condominium. Individual unit owners are themselves responsible for maintaining their units. While some condominium declarations give the condominium board the ability to force unit owners to perform maintenance in their units, many do not and in the case of those that do provide for such power, the exercise of such power is within the discretion of the board. In such cases, the courts are very reluctant to substitute the court’s decision for that of the board and will usually respect the board’s “business judgment” in not exercising a right to require maintenance in a unit even when such power exists.
“There is a situation where a unit owner might occasionally sue a board for failing to force its unit owner to maintain his or her unit. This is the situation where emergency repairs must be made to a unit to prevent damage to the common elements or to another unit. Section 18.2(j) of the Illinois Condominium Property Act (ICPA) gives every condominium board the authority have access to a unit to make such emergency repairs. If there was such a necessity, a court well might force a board to perform the emergency repairs and back charge the unit owner.”