Amending articles of incorporation, condominium declarations and bylaws.
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Illinois Condo Attorneys to Assist with Condo Bylaw Updates
Illinois condominium associations are governed by the articles of incorporation, condominium declaration, bylaws, other condominium instruments and rules and regulations adopted by the condominium association. The older the documents, the greater the likelihood that the board should be updating them to comply with changes in Illinois law or changes in society. Once the determination is made that updating condo instruments is appropriate, the second step is to contact an experienced condo attorney to assist the condominium association through the amendment process.
In Illinois, a condominium association must regularly review and update its articles of incorporation, condominium declaration, bylaws, condominium instruments and rules to ensure they comply with applicable laws, and adequately address owners’ needs and changes in technology. Updating condo instruments will often help your condominium association avoid costly litigation.
When Should a Condominium Association Amend the Condo Bylaws?
1. The articles of incorporation are dated before January 1, 2010.
In 2010, major revisions were made to the Illinois General Not for Profit Corporation Act.
A few examples of the changes include:
- Allowing for notices to be delivered electronically
- Participation in meetings by electronic means or conducting business without a formal meeting
- Voting by electronic means
- New requirements for the inspection of community association records
- Director liability for damages resulting from a cause of action against the corporation based on annual compensation.
2. The condominium instruments have not been updated to account for changed in the Illinois Condominium Property Act.
The Illinois Condominium Property Act, 765 ILCS 605/1,, et. seq. was originally enacted in 1963. Any condominium instruments drafted prior to 1963 should be immediately reviewed and amended to reflect numerous changes in Illinois and federal law.
Moreover, over the past few years, numerous amendments to the Illinois Condominium Property Act have passed, including changes related to the requirement that board members live in the condominium.
3. The condominium instruments were written by the developer’s attorney.
Condominium developers often draft the condominium declaration and other instruments to protect the interests of the developer. A condominium developer’s goals are primarily to sell units and complete the project. The developer often is not concerned about the long-range planning and operations of a condominium association.
After control of a condominium association’s board of directors is transferred from the developer to the unit owners, it is wise for a condominium association to amend its governing instruments. The amendments not only make the instruments more user-friendly by removing obsolete provisions, but they also ensure that a successor developer will not attempt to take advantage of certain developer rights later in the lifecycle of a project.
Developers also commonly include “anti-lawsuit” provisions in condominium bylaws to prevent themselves from being sued. In some cases, these provisions are so broad that they later prevent condominium associations from enforcing the condominium bylaws or collecting assessments without unit owner approval, which is often difficult to obtain for practical reasons.
Additionally, at the completion of the condominium project, many developers fail to record a consolidating condominium declaration and leave the condominium project with numerous amendments. Unit owners and condominium association board managers often become frustrated searching through the various amendments for answers to simple questions.
Many condominium associations will file a restated condominium declaration and condominium instruments that combines numerous amendments into a single document for ease of use.
4. The condominium declaration and instrument do not address current issues.
Condominium declarations and instruments can become outdated based on changes in technology or the law. Times are changing, which means you should address updating condo instruments.
Given that the law evolves much slower than technology and various other trends, condominium associations should take a proactive approach to anticipate potential issues. A reactive approach will often result in litigation if potential problems are not addressed in the condominium bylaws before they arise.
Here are examples of common issues not addressed in many condominium bylaws:
- Electric Vehicle Charging Staions
- Electronic Voting
- HAM Radio
- Insurance Coverage
- Medical Marijuana
- Rental Caps
- Remote Meeting Participation
- Short-Term Rentals (Airbnb)
- Social Media
- Smart Phone Use
- Smoking Bans
- Solar Panels
- Website Use
- Wi-Fi Use
5. The condominium declaration/instruments/condominium subdivision plan contains conflicting provisions.
Human error in drafting condominium documents can result in documents containing conflicting provisions. Ambiguous drafting often leads to expensive litigation. Condominium instruments that contain conflicts in the condominium declaration, condominium bylaws, or condominium subdivision plan should be amended immediately to avoid potential litigation.
6. The condominium instruments do not contain adequate enforcement mechanisms.
All condominium instruments should allow for the condominium association to recover attorney’s fees and costs as allowed by Section 9 of the Illinois Condominium Property Act. In addition, condominium instruments should allow for the assessments of damages—including attorney’s fees and costs—back to a unit owner who has violated the condominium instruments.
Additionally, not all condominium instruments permit the condominium association to impose fines for violations of the condominium instruments. Condominium associations updating condo instruments ensure that they have adequate enforcement provisions.
7. The condominium declaration/instruments/condominium subdivision plan is unclear.
At Hirzel Law, PLC, we believe that condominium instruments should be drafted in plain English to the extent possible. Many condominium instruments are drafted by attorneys and for attorneys, which makes them incomprehensible to condominium association boards and unit owners.
If a condominium association is constantly having battles over the interpretation of language contained in condominium documents, it may be time to think about updating the condo instruments to clarify specific issues.
How Do You Amend the Condo Instruments under the Illinois Condominium Property Act?
While the process may vary slightly depending on the size of the condominium association, below is a general overview of the steps a condominium association goes through when amending its condominium instruments:
- The board receives a questionaire to help prepare the initial draft of the amendment.
- After providing the first draft, the board provides feedback and then the attorney works with the board to make any requested revisions and get the documents into “final” form.
- Next, the attorney would then hold an informational meeting (this could be done online) to review the documents with the co-owners to see if they had any questions or additional input.
- The voting process begins. If the condominium instruments do not provide otherwise, 2/3 unit owner approval is required to amend the governing documents. The condominium instruments can provide for necessary approval of up to 3/4 owner approval, however.
- The approved amendment would then be recorded and would become effective upon recording.
- One thing that sets Hirzel Law, PLC apart is that we have meetings with all our condo attorneys to review documents. We are constantly updating governing documents based on new cases, changes in Illinois condominium law, and new issues we spot in our practice.
What Are Condo Rules and Regulations?
Every condo association should be governed by a set of rules and regulations. These rules are enforced by a condo association. Their primary goal is to oversee the maintenance and management of the common areas of your building and to determine the accepted behaviors within the complex. For instance, there may be rules on noisemaking or rules that determine the type or number of animal they allow each unit owner to have.
Should Your Condominium Association Have Its Instruments Reviewed by a Condo Lawyer?
It is a smart idea to have your condominium association governing documents reviewed by a condo lawyer. With Hirzel Law’s experience in condominium association governing documents, we are well equipped to amend and update condo instruments. Our goal is to make the language as clear as possible to avoid ambiguities that lead to unnecessary litigation. Our Illinois condo attorneys are up to date on updating condo bylaws, so they comply with the most current Illinois condominium association laws.
Contact Our Condo Lawyers for Help with Updating Condo Instruments
At Hirzel Law, PLC, our Illinois condo lawyers can help your condominium association with updating your condominium declaration, bylaws and other condo instruments. We stand by our clients, offering the highest quality legal representation and promptly responding to our clients’ needs.