General Background. The Just Housing Amendment (“JHA”) took effect in Cook County on January 1, 2020. The Cook County Commission of Human Rights was stayed from enforcement proceedings until after February 1, 2020. The JHA applies to all Cook County landlords, including condominium and homeowner associations. Please note that an association in possession of a dwelling as a result of eviction proceedings, as well as any association policy and/or rule regarding leases, must comply with the JHA.

The JHA was passed in an effort to reduce housing discrimination towards individuals with criminal histories. Prior to its passage, landlords were able to ask applicants a general question on having a criminal background. If an applicant answered in the affirmative, the landlord could deny the application. As of January 1, 2020, landlords, including associations as described above, are prohibited from denying an application based on such criteria. In order to deny an application based on an applicant’s criminal history, a landlord must perform a two-step application process, and even then, a landlord is limited to what criminal history can be used for denying the application. Please note that the JHA does not require landlords conduct criminal background checks. The JHA is triggered only if a landlord wants to conduct a criminal background check as a part of the application process.

Step One: Prequalification. Before a landlord (or association) can conduct a criminal background check, the landlord must evaluate an applicant’s income, rental history, credit score, employment, etc. Any inquiries into an applicant’s criminal background check during this step is prohibited. If an applicant does not satisfy the landlord’s prequalification requirements, then the application can be denied. If the applicant satisfies the prequalification requirements, then the landlord can conduct a criminal background check. Certain disclosures and notices must also be provided to the applicant before a landlord can accept an application fee.

Step Two: Criminal Background Check. After completion and satisfaction of Step One, a landlord can conduct a criminal background check and perform an “individualized assessment” of the results. Landlords are required to provide a copy of the results to the applicant. The applicant can dispute results of the background check if the application is denied. A landlord can only deny an application after conducting the individualized assessment. The denial is limited to criminal history dating back three (3) years and necessary to protect personal safety and/or property. Certain criminal histories are exempt from the JHA restriction.

Looking Ahead. Associations located in Cook County should review their governing documents, rules, and policies related to leasing to ensure compliance with the JHA. It is possible that an association’s current rules and policies do not comply with the JHA two step process. Further, an association’s rules and policies should be amended to include the JHA required disclosures and notices.

Landlords located in Cook County should review their lease applications to ensure compliance with the JHA. Certain questions frequently included on lease applications may not comply. If necessary, the lease application should be revised and include the required disclosures and notices.

Our office can assist your association’s compliance by offering the following:

  • Review and revision of current governing documents, rules, and policies related to leasing;
  • Review and revision of current applications and addenda;
  • Preparation of required disclosures, notices, and forms; and
  • General advice and guidance in navigating the JHA requirements.

Status of Cook County Tax Appeals for Associations

Similar to other entities and facilities, the Cook County Assessor’s Office is closed to the public and service by telephone is unavailable. As such, the Cook County Assessor has suspended mailing of assessment notices and appeal deadlines until further notice**.

While certain association business may be on hold due to the global pandemic, your association can discuss and approve a tax appeal. There is no need to wait until receipt of your assessment notice to approve an appeal. Our office can seamlessly handle your appeal from beginning to end. Our office will monitor the resumption of notices and deadlines. Upon receipt of your assessment notices, our office will conduct the necessary initial research prior to filing an appeal. By taking action now, the pressure of deadlines and time constraints is effectively eliminated for the association. Our office highly recommends taking advantage of this suspension in order to begin the process as soon as the mailing of notices and deadlines are resumed. Contact our office today to learn more about how associations should handle the appeal process.

** Please note: Any appeals currently pending remain on schedule and will be processed. However, if an appeal requires a hearing, the use of technology may be used in lieu of in-person hearings.

RECREATIONAL MARIJUANA USE IS COMING TO ILLINOIS…
NOW WHAT?

Historically, Illinois condominium associations have not had to pay particular attention to preventing owners and occupants from smoking marijuana within the association. Smoking marijuana was illegal, so in the event people were found to be smoking marijuana, an association’s board of directors could simply notify the police or take action against the person under the declaration’s general prohibition against illegal activity or noxious and offensive behavior from taking place upon the property.

For better or worse, this is about to change. The Illinois House of Representatives recently passed House Bill 1438 legalizing the recreational use of marijuana. On June 25, 2019, Governor J.B. Pritzker signed the Cannabis Regulation and Taxation Act into law, which permits adults aged 21 and older to use marijuana within a private residence and possess up to 30 grams of marijuana. This Act also permits medical marijuana user to grow up to five (5) marijuana plants in their home, but does not permit recreational users to grow any plants in their homes. Upon legalization (January 1, 2020), condominium associations wishing to regulate the smoking of marijuana within the association will no longer be able to simply rely on its covenants which generally prohibit criminal behavior.

Thankfully, the legislature acknowledged the idea that some condominium associations may still want to regulate this activity. As such, the legislature created a new section of the Illinois Condominium Property Act granting condominium associations the ability to regulate the smoking of marijuana within the association, despite the fact that it is now legal.

The addition to the Illinois Condominium Property Act provides that a condominium association’s governing instruments may prohibit or limit the smoking of marijuana within an owner’s unit. However, while the law grants an association authority to prohibit the smoking of marijuana within an owner’s unit, the law requires that such a regulation shall only be effective if set forth in the “condominium instruments.” While many consider an association’s rules and regulations to be part of the “condominium instruments,” the Illinois Condominium Property Act actually contains a narrower definition, and only considers documents recorded against the property (i.e., declaration and bylaws) to be “condominium instruments.” Therefore, while the smoking of marijuana within units can be prohibited or restricted, it must be done via an owner adopted amendment to the condominium instruments, not via a board adopted rule. It should be noted that the association’s ability to restrict via the condominium instruments specifically relates to the smoking of marijuana and does not pertain to the ingestion or consumption of marijuana by other methods (i.e. edibles). Lastly, the new law does expressly state that either the condominium instruments or rules and regulations may restrict the consumption of marijuana, in any form, upon the common elements. Therefore, if the association wants to restrict the consumption of marijuana throughout the common elements, the board need only adopt a rule to such effect.

Legal recreational marijuana use is coming to Illinois, and condominium associations will be forced to consider how, if at all, they want to regulate the activity within the association. While the board of directors will have broad discretion in regulating and restricting the use of marijuana upon the common elements, the question of whether to prohibit the smoking of marijuana within the actual units will need to be left to the owners. Our office has already begun drafting rules related to the consumption of marijuana within the common elements for some of our associations. If your condominium association is curious about how the new law will affect the association specifically, or is considering adoption of a rule restricting the consumption of marijuana, please feel free to contact our office. We are happy to assist you.

This article is being provided for informational purposes only. This article does not constitute legal advice on the part of Keay & Costello, P.C. or any of its attorneys. No association, board member or any other individual or entity should rely on this article as a basis for any action or actions. If you would like legal advice regarding any of the topics discussed in this article and/or recommended procedures for your association going forward, please contact our office.