Oftentimes co-op, condo and HOA boards are faced with difficult choices when it comes to enforcing their community’s rules and regulations. Board service isn’t an easy thing, and while board members want to be understanding of their fellow residents, they are both legally and morally obligated to enforce board decisions as needed. One possible option in dealing with serious infractions is to deny access to community amenities – or even to property access.
Where is the Precedent?
Infractions by co-op, condo or HOA members generally fall into two categories: rules violations and nonpayment of assessments and fees. The question arises as to whether a board of directors has the option to penalize members by restricting access to and use of amenities as punishment for infractions and nonpayment to begin with. According to Michael Kim, a co-op and condo attorney and principal of Chicago-based law firm Michael C. Kim & Associates, the answer is “Yes, if the governing documents permit and provide for it. Basically, we are talking about amenities, not necessities. A gym is providing an amenity. It’s not a necessity. Elevator access is something else. Arguably, denying elevator access in a three-story building is not much of an inconvenience to an able-bodied person, but to someone who is wheelchair bound, that essentially is a shut-out. Of course, even if you are able-bodied and you live on the 40th floor of a 50-story building, such restriction could present a problem as a practical matter as well.”
Sima Kirsch, an independent attorney in Chicago representing co-op and condominium boards as well as HOAs supports Kim’s assessment that regardless of housing model, authority emanates from the governing documents. “As far as regulating violations of an association’s covenants, conditions and restrictions of record found in the operating documents, a board in Illinois may create rules and policies to govern daily life at the association, enforce use and occupancy rules, and other provisions. Due process must be observed at all times regardless of the situation.”
In order to avoid any possible claims, Kirsch recommends that “an association should first enact policy setting out the standards for action or behavior only if the governing documents do not specifically prohibit it, the board has adopted the discipline policy in advance, notice of the policy has been provided to all of the owners in advance. The violating owner [should be] given notice of the violation and provided an opportunity to be heard, to hear the facts supporting the notice of violation, and present defense.”
That said, Kirsch further cautions that “a board may not, however, take away the essential services of water, heat, or other utilities, lock residents out of elevators or [infringe] the rights that come with their ownership. A board may also restrict an owner’s right to be counted toward a quorum, but may not take away their right to vote. There is a fine distinction to be made before creating a policy.”
Understanding Terms, Conditions and Distinctions
To delve a bit further into the do’s and don’ts of this legal landscape, Kim cautions that “Exclusion through manipulation of electronic key systems would be considered a lockout. In Illinois, that would be akin to a constructive eviction.” According to the Legal Dictionary section of freedictionary.com, constructive eviction is “The disturbance by a landlord of a tenant’s possession of premises that the landlord makes uninhabitable and unsuitable for the purposes for which they were being leased, causing the tenant to surrender possession. Constructive eviction arises when a landlord does not actually evict, but does something that renders the premises un-tenantable. This might occur, for example, where a tenant vacates an apartment because a landlord turns off the heat or water”...or makes the elevator to the 40th floor inaccessible. According to Kim, “In Illinois that would be akin to a constructive eviction, because you can’t reach your unit.”
Kirsch adds that “in Illinois, the answer to whether a board may regulate or suspend privileges and amenities for failure to pay assessments is ‘No.’ First, pursuant to the Illinois Condominium Property Act (ICPA) section 18(b)(2) is a one-member rule state, meaning any action taken by the board must uniformly apply to all owners, so as not to create different classifications of members. Restricting use for nonpayment would create two classes. Second, section 18.4 (l) of the Act only permits reasonable fines to be levied for unpaid assessments, liens and possession suits – all of course with due process by following the procedures in the ACT and the Fair Debt Collections Practices Act.”
Kirsch also points out an important distinction between condominium and co-op communities when it comes to this issue. “Because of their form of corporate setup, co-ops are handled differently and have more leeway in establishing restrictions. However, whether co-op or condo, the area of suspension of amenities and privileges is a sensitive one, and a board is advised to know their state’s laws and the laws of their governing documents.”
It should also be noted that since co-op corporations are in reality ‘landlords’ as tenants hold proprietary leases rather than deeds, the concept of constructive eviction described above and mentioned by Kim has particular applicability to co-op properties.
According to Kim, “In a condo setting in Illinois, denial of access is not as well addressed or specifically addressed as in other kinds of associations. For example, non-condominium HOAs will often expressly state that if you fail to pay your assessments or fees, or commit certain types of infractions, the association has the right to suspend your privileges to use common area recreational facilities. It’s very clear and explicit. In the condo documents that we see in Illinois, if it isn’t that universal or explicit, you have to look deeper and determine what they say in terms of the rights of owners to use common areas. Often it will say that the owner has an absolute right to use facilities to access his unit.” Put another way, says Kim, “If someone’s simply not paying their assessment [barring their access to common areas or amenities] would be like saying that a person who doesn’t pay his income taxes should not have access to public roadways.”
The bottom line seems to be that you can inconvenience a recalcitrant resident, but you can’t make his/her unit uninhabitable. So, you can deprive the resident of cable TV, but not hot water.
Alternatively, the Illinois condominium statutes provide a different approach to conflicts created by residents who continuously break or flout house rules. “If someone is acting in an unsafe manner when visiting the recreational facilities and jeopardizing other people, it’s different,” says Kim. “If a resident is repeatedly jumping into a pool or dropping heavy weights on the floor in the gym, those are conflicts based on rules which you probably could enforce. Courts would be receptive to this argument.”
Kirsch makes a similar argument. “As far as regulating violations of an association’s covenants, conditions and restrictions of record found in the operating documents, a board in Illinois may create rules and policies to govern daily life at the association and enforce use and occupancy rules and other provisions. Due process must be observed at all times, regardless of the situation.” As stated previously, to avoid any possible claims, an association should first enact a policy setting out the standards for action or behavior only if the governing documents do not specifically prohibit it. And, Kirsch reiterates, “If the board has adopted the discipline policy in advance, notice of the policy has been provided to all of the owners in advance, and the violating owner is given notice of the violation and provided an opportunity to be heard, and to hear the facts supporting the notice of violation and present defense.”
Kirsch and Kim both stress that before taking any such extreme action, it’s always good to send out a warning letter and give the resident an opportunity to correct the problem. Co-ops, condominiums and HOAs are communities, and the residents have to live together. It’s always better not to create situations where bad feeling linger and animosity can poison the environment.
Some Cases in Point
Kirsch represents several small and mid-sized associations with members who have never recovered from the depressed economy of the mid-aughts. Many residents are still in arrears and think nothing of it, yet they want to participate in association business. Since Illinois does not permit associations to restrict attendance or voting, they are left with the right not to count these members for meeting a quorum for any purpose, including taking the vote needed to void a special assessment.
In another building in which they are having trouble with building security, Kirsch was consulted about ways to stop owners from sharing their keys with their non-resident friends or significant others, or leaving the gate open. The building had experienced several home invasions with no signs of break-in, so they instituted a policy that – among other things – restricted the right of entry for guests, required owners to come to the door to let their guests into the building, and provided for a hefty fine if restricting use was not enough. They did not address the gate except as a request, since it was impossible to monitor without outside cameras. This case is a perfect example of objective and subjective violations, and why it is easier to address one aspect of the violation and not the other.
Of interest to note is how this issue is handled in different parts of the country. Kirsch notes that, “Where some states have statutes permitting regulation and suspension of privileges, other states set standards through case law, or are silent on the issue. Whereas the Florida statute specifically indicates what can be curtailed or suspended, and the Illinois statute specifically states what is prohibited, New York has no statute, and boards must rely on their operating documents and case law. New Jersey requires a board to partake in mediation before placing restrictions.”
Finally, says Kirsch, “It is important for every policy or rule to be consistent, transparent and fair, applied uniformly and connected to a purpose of the association. And remember; don’t pass policies you can’t monitor, and make sure that all fines and restrictions are to apply to all persons living in a unit.”
Ultimately, access – or the revocation of it – is not a cudgel for boards to wield against problematic or non-paying residents, but it is a useful policy in certain situations toward certain ends. Determining what those are, and the extent of your own board’s ability to use it, is a process best handled with the help of your building or association’s legal counsel.
A.J. Sidransky is a novelist and staff writer for The Chicagoland Cooperator.