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Q&A: Levying Fines?

We send violation notices and the owners just throw it in the trash. We would prefer to threaten fines rather than legal proceedings. Specifically, leasing units without board approval or notice, barbecue grills on patios, and animals in units. Our documents don't specifically define barbecue grills, however we feel it falls under nuisance (fire hazard). There is a no pet policy in our documents, and a purchase and/or leases must be approved by the board. I seem to think we can fine up to $100 per day not to exceed $1,000, but can't seem to find legislation to support that.

—-It’s a Fine Mess

Section 18.4(l) of the Illinois Condominium Property Act provides for the levying of reasonable fines for violations of the declaration, bylaws, and rules and regulations of the association after providing the offending unit owner with notice and an opportunity to be heard, says Matthew Goldberg, attorney at Bancroft, Richman & Goldberg, LLC in Chicago. “Section 18.4(l) only refers to 'reasonable fines' and does not provide any specific dollar limit.

“Your violation notice should indicate that if no response is received by a date certain, i.e. throws it in the trash (some governing documents spell out a specific time period) then the owner will be deemed in default of the provision and fined without further hearing.

“Typically the requirement for sending a notice is to the last known address on the association’s books and records. After levying a fine, the board may decide to institute an action to collect the fine under the Illinois Forcible Entry and Detainer Statute, may seek an injunction to force the offending owner to curtail their behavior and in some cases, more drastic measures may be taken. Additionally, an association is entitled to recover reasonable attorneys’ fees as set by the court. Fines can be a onetime charge or can be continuing for a violation that is of continuing nature.

“I would suggest caution in how you use the general nuisance clause of your declaration. While it is intended as a catchall for undefined nuisances, I am not sure the use of a barbecue grill would qualify. For one thing, not all barbecue grills are considered a fire hazard. You should check your local ordinance to determine what is and what is not acceptable. As to the other examples you mention, the regulation prohibiting conduct must be reasonable. There are different standards depending on where the regulation is found. If the regulation is found in the declaration or by-laws, those regulations are typically given a strong presumption of reasonableness because it was a provision accepted (i.e. voted on) by the unit ownership.

“Rules however, are adopted only by the Board of Directors and must therefore pass a reasonableness test but without the initial presumption of validity. When it comes to rental restrictions, it is preferable to have the regulation in the bylaws. As to the approval of purchases, an association’s right-of-first-refusal must be found in the declaration. Even if an association has a right of first refusal, this right should not be equated with the right to disapprove contracts for sale. The right-of-first-refusal is a limited right that allows a Board of Directors to step into the shoes of the purchaser under a contract for sale, and purchase the unit under the same terms and conditions as provided in the contract. The board cannot use a right-of-first-refusal as a screening method to disapprove of certain purchasers. Additionally, if the board intends to use a right-of-first-refusal, the process to do so typically requires unit owner approval.”