Posts

 

SUMMER FUN AT THE COMMUNITY POOL: DO WE REALLY NEED TO THINK ABOUT THE FAIR HOUSING ACT?

Spring is finally here and Memorial Day, the unofficial kick-off to summer, is just around the corner. The lead up to Memorial Day usually means two things for community associations: 1.Time to get the pool ready, and 2. Owners who would like to be able to use the pool this summer will find a way to pay their assessments. As the pool season approaches, a discussion of the current state of the Fair Housing Act and the Fair Housing Amendments Act of 1998 is important as these statutes directly impact how an association may regulate the use of its pool and other clubhouse facilities.

The Federal Fair Housing Act prohibits discrimination in connection with residential dwellings against individuals on the basis of their race, color, sex and national origin. The Fair Housing Amendments Act of 1988 went further, and prohibited discrimination on the basis of handicap and familial status. Many of the Fair Housing provisions do not apply to community associations, but community associations are subject to the jurisdiction of the Fair Housing statues to the extent the statutes prohibit discrimination in the provision of services or facilities with respect to residential dwellings. It is this language that subjects community association common areas, clubhouses and swimming pools to Fair Housing governance.

Communities must be aware that appellate courts that have been asked to decide Fair Housing cases challenging the validity of pool rules have found that the following commonly-adopted rules violate the Act:

• Adult-only swim times
• Restricting children to one pool when a community may have more than one pool
• Age restrictions for gaining entry to, and use of, a pool
• Requiring supervision of swimmers under a certain age
• Requiring children under a certain age be accompanied by a parent or guardian

If a community has adopted any of the above rules, or if a community has adopted comprehensive rules relating to the use its common areas and facilities, it should seek an opinion from its attorney as to their validity and enforceability in light of the Fair Housing laws. These statutes are being construed liberally by appellate courts across the country and a community does not want to find itself engaged in federal litigation over its pool rules. Not only is such litigation extremely time consuming, the potential penalties for engaging in a discriminatory practice, whether intentional or unintentional, can be substantial.

Unfortunately many associations face difficulties when damages to common elements are discovered. Typically an association is compelled to bear the expenses of fixing or replacing the damaged common element. However, what if the damage is caused by a unit owner or associated with an individual unit? Most condominium declarations provide that the expenses incurred in repairing a common element damaged by a unit owner can be assessed against that owner or unit. A more unique question is encountered when the association cannot determine who caused the damage, yet the common element is either solely accessible by one unit or obviously under the control of a single unit.

One Association was faced with such a problem. The supporting members of a roof truss system had been removed in the attic space of a unit to seemingly create additional storage space. The roof trusses were defined as a common element but were accessible solely through the living space of a single unit. Due to safety concerns the Association notified the unit owner of the damage and requested that the trusses be repaired or replaced immediately. When he unit owner failed to undertake the repairs, the Association contracted to have the work performed. Following the repair of all the damaged roof trusses the Association assessed the unit owner’s account for the cost of repair. The unit owner refused to pay.

The Association instituted suit for reimbursement of the expenses for the repairs. The Association’s Declaration provided that all expenses incurred in repairing damage of common elements should be borne by the unit owner or unit causing such damage. Further, the Declaration provided that all covenants contained within the Declaration “run with the land,” meaning all impositions, obligations, and rights are transferred from owner to owner. While the Association could establish that the damage to the common elements was related solely to this unit, it could not determine or establish who removed the trusses or when they were removed. The Association argued that it need only prove the existence of the covenant and its breach to receive reimbursement. The current unit owners argued that they did not remove the trusses. The current owners contended that the Association should sue the prior unit owners who they contended had sold them the unit with the removed trusses.

The trial court determined that the Association could recoup its expenses from the current unit owner. The obligation to pay for repairs to the common elements, related solely to this unit, was an obligation of the current unit owner. Accordingly, a judgment for the entire amount of the repair work was awarded against the unit owner. Additionally, the trial court, in accordance with the Declaration, awarded attorneys fees in favor of the Association and against the unit owner.

The unit owner appealed the trial court’s decision to the appellate court. The appellate court affirmed the trial court’s ruling (in an unpublished opinion) and held in favor of the Association. On appeal the unit owner argued that the trial court, in effect, imposed strict liability without requiring the Association to establish that the current owners caused damage to the trusses. In response, the appellate court stated that “the existence of a covenant and the existence of a breach are the relevant issues in this type of case; once the covenant and breach are established, enforcement is entitled.”

This decision is particularly beneficial to associations in that it recognizes the mechanism of recovery for damage to common elements. Similarly, the decision stands for the proposition that new unit owners, by virtue of their ownership, assume all responsibilities and obligations which could have been assessed against the prior owners. If the prior owner damaged the association’s property within the unit, the new owner can be held responsible for the costs and expenses. Similarly if the prior unit owners had failed to pay all of their assessments, the new unit owner would be responsible for bringing the account current. Moreover, the association is not required to pick up the tab for the repair work merely because the unit may have been transferred since the damage was done.

Subsequent to the sale of the unit in the case described above, in 1991, the Illinois General Assembly passed a law which may have some impact on Associations and repairs or alterations to common elements. The statute, 765 ILCS 605/22.1(a), requires the Board of Managers to provide several statements when a unit owner, other than the developer, decides to sell his or her property. One of the required statements that the Board must make is that “any improvements or alterations made to the unit, or the limited common elements assigned thereto, by the prior unit owner are in good faith believed to be in compliance with the condominium instruments.” (765 ILCS 605/22.1(a)(8)). The burden is on the unit owner selling the unit to request these statements from the Board in writing. But after the request is made to the Board, the Board is required to furnish the statements to the unit owner within 30 days. The burden is then on the prospective purchaser of the unit to demand the Board’s statements from the seller to whom the Association provided the information.

With this in mind, it is important to note that the Board is not required to automatically provide a statement under 765 ILCS 605/22.1(a)(8) every time a unit is sold. Rather, the Board’s issuance of a statement is dependent upon several occurrences. First, the prospective purchaser of a unit must request a statement by the Board from the current unit owner. The current owner must then request the statement from the Board. If these two events occur, then the Board must provide the required statement to the current unit owner within 30 days. If either of these events do not occur, then the Board is not required to make a statement for that particular unit.

For each instance that the Board is requested to make a required statement, the Board should take certain steps to make sure that it complies with the Illinois Condominium Property Act when it makes the required statements. If the Board is making a statement regarding alterations or improvements, then it should make an inspection of the unit. In inspecting the unit, the Board should look for all alterations or improvements made in the unit and the limited common elements assigned to the unit. The Board should ascertain whether or not each alteration or improvement complies with the Association instruments. In its required statement, the Board should clearly identify each and every alteration or improvement in the unit or limited common element which the Board in good faith believes does not comply with the Association instruments.

Accordingly, as Ben Franklin once wrote, “[a]n ounce of prevention is worth a pound of cure.” If prospective buyers require that all the applicable disclosures under 765 ILCS 605/22.1 be complied with, the described situation could be avoided. Additionally, if an Association is making an affirmative representation about alterations or improvements, it should make sure that either no alterations have been made or that any alterations are in compliance with the governing documents. Otherwise, despite language in the declaration which may hold a unit owner responsible, the association, not the owner, would be responsible to repair or replace the damaged common elements.

The Difference between Common Elements and Limited Common Elements

After reviewing several different single-family home and condominium association Declarations, some general similarities between the Declarations were evident in the way common elements and limited common elements are treated as far as the maintenance, repair and replacement of the common elements and limited common elements. These general similarities are being described to aid and inform Association Board of Managers as issues involving common elements or limited common elements arise. However, in each situation involving a common element or limited common element, every Board of Managers should consult the Declaration for their Association in order to determine how to handle the situation, because the particular terms of the Declaration may differ from the general provisions laid out here.

Single-family Homes

For single-family home associations, the Declarations will vary as to what constitutes a common element. Some Declarations state that common elements do not include the landscaping and land on the lot of each house, but are limited to the other areas of property owned by the Association. Other Declarations state that all landscaping, regardless of what lot it is on, is a common element as well as parts of the house such as the siding and roof. There are also Declarations which describe an exclusive common element, which is a portion of the common area that is exclusively for the use of one or only some of the neighborhoods in the development. Although Declarations for single-family home associations tend to have a great variety in their definitions of common elements, general statements can be made regarding the treatment of common elements and limited common elements in single-family house Declarations.

In general, the Association in a single-family house development is responsible for maintaining, repairing and replacing all of the common areas. The Board of Managers of an Association typically has the right to adopt rules and regulations which govern the use, maintenance, and administration of the Common Areas. The homeowners typically have the responsibility for maintaining, repairing, and replacing items in the house and the areas attached to the house such as the driveway, the patio the walkways, and the fences. If there are exclusive common elements, then the responsibility for maintaining, repairing, and replacing these typically falls only on the homeowners who are in the neighborhoods which use the exclusive common elements.

There are many issues which may arise where the Board of Managers will have to determine whether the association or the individual home owner or owners affected must pay for repair or replacement. Looking at a few examples of the issues that may arise will demonstrate the care and diligence which must be followed when determining who must pay the repair or replacement costs. One situation that may arise in a single-family house development is who must pay for the replacement of mail boxes or other such items on each lot when the need arises to replace them. In determining this, the Declaration of the association whether the Association has any rules regarding the size or type of mail box allowed. Additionally, the Declaration and By-Laws need to be reviewed to determine whether the Board has the express power to replace this specific item. If the Board is not given the express power, then there may be some type of implied power allowing the Board to make this replacement. If there is a regulation allowing the Board to mandate the exact size and style of mail boxes, then this could be the implied power which the Board needs. Before a Board takes any action in a matter such as this, however, the Board should pass a resolution describing the actions the Board will take, and the Board should give notice to all of the homeowners prior to the replacement.

Another situation that could arise in a single-family home development is damage to a house by a fire, storm, or other casualty. Should this occur, the question may arise as to who must pay for the repair. Some Declarations provide that the Association is responsible for the maintenance of parts of the house, such as the siding, but the homeowner must pay for repair and maintenance of other parts of the house. For example, if a storm harmed part of a house, such as a sliding-glass door or the siding, the Board would need to check its Declaration to see if it is the homeowner’s responsibility for replacing the siding or sliding-glass door. Typically Declarations that call for the Association to perform maintenance on a portion of the house will make it the responsibility of the homeowner to repair all parts of the house. A distinction is made between maintenance and repair, where maintenance is simply up-keep, like cleaning and painting. In general, if a repair is necessary and the homeowner fails to make the repair after proper notice and time to make the repairs is given by the Board, then the Board may complete the repair and charge the homeowner the cost of the repair.

Condominiums

In contrast to single-family home Declarations, the Declarations for condominium properties are much more similar to each other. Generally, the Declarations define the common elements as all of the property except for the dwelling units. This means common elements could include, but are not limited to, all of the following: land, foundations, hallways, stairways, entrances and exits, common parking areas, storage areas, basement, roof, incinerator, pipes, ducts, electrical wiring and conduits, central heating and air, public utility lines, floors, ceilings, and perimeter walls of units (except the portion included in unit boundaries), outside walks and driveways, landscaping. Limited common elements are generally defined as those common elements which are appurtenant to or for the exclusive use of some, but not all, unit owners. Limited common elements could include, but are not limited to, all of the following: balconies, individual heating, air, and plumbing fixtures and related pipes, ducts, wiring, the perimeter walls, floors, ceilings, doors, windows, entryways which lie outside the unit boundary, terraces, patios, parking spaces, shutters and awnings.

A Declaration could take several approaches to repairs of common elements, but in general, Declarations state that it is the Association’s responsibility to repair common elements, and it is the responsibility of the unit owners attached to the limited common element to repair Common Elements and Limited Common Elements the limited common element. If the Board gives a unit owner notice that a repair needs to be made and adequate time to make the repair, but the unit owner does not make the repair, then the Board may make the repair itself and charge the cost to the unit owner. An example of a limited common element which might need repair is a balcony or patio appurtenant to one unit. If the Board determines that the balcony or patio requires repair, the Board should first check its Declaration to make sure it has the authority to mandate repairs to balconies or patios. If it does have this power, then the Board should notify the unit owner of the need to repair and the specifications which the repair work must comply with. The Board must also give the unit owner a reasonable amount of time to complete the repairs. It is a good idea to notify the unit owner of the timetable for repairs that the Board has in mind. If the repairs are not made within that timetable, then the Board may hire a contractor to complete the repairs, and charge the unit owner for cost of the repair work.

Many of the situations involving common elements and limited common elements affecting associations are treated similarly by the Declarations of many different associations. The Board of Managers for every association should be aware of its rights and responsibilities regarding common elements because these issues often arise. While this article covers some general provisions which are typically found in Declarations, the Board of Managers of an association should consult the Declaration of their association when faced with an issue involving common elements and limited common elements, because each Declaration is unique.