Can condo developer add units to association?

 
Posted7/2/2022 7:00 AM

Q: The developer of our condominium association has advised the board of directors that the developer is going to add units into our condominium. The last unit was built and sold about five years ago, so this comes as a surprise. The developer said he developed the association as an "add-on condominium," and that he has the right to do this. What is an "add-on condominium?

A: An "add-on condominium" means a property to which additional property may be added in accordance with condominium instruments and the Illinois Condominium Property Act.

 

The developer of a condominium may reserve the right, in the declaration of condominium, to add additional property to that which has been submitted to the provisions of the Act. There is a time limit of 10 years from the date of the recording of the declaration, after which the option to add additional property is no longer in effect. Section 25 of the Act describes add-on rights in detail.

The association's declaration of condominium should be reviewed for details regarding the developer's add-on rights.

Q: The brother of a unit owner in our association is in prison for a sexual assault involving a minor. A rumor is swirling around our association that this person will be moving into the unit in our association when he is released from prison. Many families with young children live here, and they are concerned. Can the association's declaration be amended to prohibit convicted sex offenders from living at the association, or would this be discrimination?

A. There is a difference between discrimination and unlawful discrimination. Convicted sex offenders are not members of a protected class and, therefore, discrimination against a sex offender would generally not be considered unlawful discrimination. An Illinois court will generally uphold an amendment to an association's declaration unless the amendment is arbitrary, against some public policy, or violates some fundamental constitutional right of the owners. It's my view that the proposed amendment to the declaration, if properly adopted, would be valid.

Q: My condominium association has sent me a notice that its contractor needs to enter my fifth-floor unit in order to perform maintenance to a (common element) terrace that is located next to my unit. I don't like strangers in my unit, and this seems like an invasion of my privacy. Am I required to provide the association with this access to my unit?

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A: Yes, you are required to provide the access to your unit. The board of directors of a condominium association has a right of "access to each unit from time to time as may be necessary for the maintenance, repair or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to other units." This is set forth in Section 18.4(j) of Condominium Property Act.

Q: A unit owner has sued our condominium association, claiming the board of directors is in breach of a contract. The suit claims the declaration of condominium is the contract. Is this type of a claim covered by association insurance?

A. Initially, the declaration of condominium is considered a contract. Whether the claim would be covered by insurance will depend on the specific allegations of the suit. This should be discussed with the association's insurance agent or broker. However, Section 12(a)(3)(D) of the Illinois Condominium Property Act requires the procurement of liability coverage that includes "defense of breach of contract" for directors and officers. Therefore, the defense of a suit like this should be covered by insurance.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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