defend themselves. In the case of items left on the common elements or common area, many associations’ policies allow for daily fines until the violation is remedied.
Where fines do not work, the association may need to resort to litigation. It is best to try and avoid litigation in these types of cases where possible (especially if the violations are minor). However, at some point the association has to do something other than fines to try and obtain compliance. We recommend that several notices be sent to the owner before initiating litigation unless the circumstances are exigent. In the case of a condo, the association is entitled to recover its reasonable attorneys’ fees from the owner who committed the violation if it wins the case. In non- condos, the ability to recover attorneys’ fees is based on the declaration as no state law address it.
An additional option for the association is to remove the infraction. Under many circumstances, this is addressed in the enforcement provisions of the declaration. These so called “self-help” remedies should be used sparingly because of the issues that can arise because of them. Is the association responsible for the items if they are damaged or ruined? It depends entirely on the circumstances. Likewise, if the owner comes out, becomes combative or threatening, you may have to cease. Failing to do so could result in a breach of the peace and actually create liabilities for the association.
Some clients try to adopt elaborate rules in an effort to combat future infractions. Rules that have language that either explicitly or implicitly impact the rights of children, families or religions can lead to quick liability under the Fair Housing Act and the Illinois Human Rights Act. The Fair Housing Act makes it illegal to adopt rules that target or disparately impact protected classes. Children are protected from improper treatment. Likewise, religions are protected from rules that would prohibit bona fide religious practices. A famous court case involved the placement of a religious artifact in the hallway. The Seventh Circuit Court of Appeals, the federal appeals court that presides over Illinois, made it clear that rules restricting religious practices in that manner are absolutely prohibited.
Dealing with individuals who are utilizing more space than they can legally be entitled can be difficult. If an association is experiencing issues with individuals abusing the declaration in this way, we recommend that you consult the association’s attorney to combat those “space invaders.”
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If your association is in need of improvements, please contact Tim Haviland at 630.908.6708 or
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inlandbank.com
Subject to credit approval. 26 | COMMON INTEREST® • Summer 2021 • A Publication of CAI-Illinois Chapter
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