Can a homeowner really do that?

This article will discuss common circumstances that arise in community associations. Always remember that not all community associations are alike, and you should always consult the governing documents for your Association and the applicable statute governing your community association. This article is written with the help and guidance of Howard Dakoff, a Partner at the law firm of Levenfeld Pearlstein, LLC in their Community Association Practice.
Typically, an association’s governing documents consist of various governing documents, including a declaration, by-laws, and rules and regulations. Associations are also bound by statute. Condominium associations are bound by the Illinois Condominium Property Act (“Condo Act”), whereas common interest communities are bound by the Common Interest Community Association Act (“CICAA”). Due to the variety of documents an association is bound, confusion often arises when there are conflicting provisions and/or requirements in the governing documents or applicable statute.
It is important to remember the following legal document hierarchy when it comes to your Association documents:

  1. Condo Act/CICAA
  2. Declaration
  3. By-Laws
  4. Rules and Regulations 

When there is a conflict between a provision of the Condo Act or CICAA and any of an association’s other governing documents, the Condo Act/CICAA prevails. When there is a conflict between a provision of the Association’s Declaration and the By-Laws or rules and regulations, the Declaration prevails, and so on.

For example, an association’s Declaration may allow for certain items to be stored on Unit balconies, such as flowerpots and patio furniture, but the rules and regulations may state that no items may be stored on Unit balconies. Since there is a conflict between the two documents, the provision in the Declaration allowing for flowerpots and patio furniture prevails, and the rule restricting the storage of items on a balcony will not be enforceable.

To ensure consistency and continuity between the Condo Act/CICAA and the Association’s governing documents, the documents should be occasionally reviewed and updated to avoid conflicting provisions that lead to owner confusion. If a conflict is identified, then the board should amend the conflicting provision to eliminate the conflict.

Can a Homeowner really do that?

Q. Can you smoke in your unit?
A. Yes – unless prohibited in Declaration or By-Laws. 

Q. Can you smoke in the common elements of an Association building?
A. Most Likely Not – because almost all associations prohibit smoking in the common elements of a condominium association via the Declaration, By-Laws or Rules.  The answer is yes if there is no smoking prohibition in the governing documents.

Just because smoking is permitted in an area does not give carte blanche to people to do what they want when it comes to smoking. In most Declarations and By-Laws, there is a provision that prohibits “Noxious and Offensive Conduct in a unit or the common elements”. This gives the Association the power to exercise remedies against the smoker if the smoking becomes a nuisance. When smoke or odors from smoking emanate from a unit into the common elements, most boards commonly consider it a violation of the Noxious and Offensive Conduct as written in the governing documents.

Q. Can you smoke recreational Cannabis in your unit if you are of legal age to do so?
A. Yes – unless prohibited in Declaration or By-Laws. 

Cannabis is legal in the State of Illinois, and your Association can not prohibit the smoking of it in your unit unless the Declaration or By-Laws prohibits smoking. If smoking is allowed in the building, homeowners will still need to comply with any Noxious and Offensive Conduct language in the Declaration and By-Laws, or they may be subject to fines and other remedies.

The most common process for when a homeowner or resident is in violation of the Noxious and Offensive Conduct would be:

  1. Provide a courtesy warning letter. 
  2. Levy Fines are based on the governing documents per the Condo Act/ Declaration.
  3. The homeowner might be required to take further steps to remediate the situation in the unit.
  4. Mandatory Permanent Injunction relief if the situation remains a nuisance to others.
  5. Prohibit Smoking in units which would require a declaration or by-laws amendment and a vote by the unit owners
  6. Adopt a rule that smoke transmission outside of a unit shall be deemed by the Board to be a noxious and offensive activity.

A side note is that medical marijuana/cannabis may be treated differently than recreational cannabis consumption under the law, depending on the circumstances. 

Q. Can a resident keep a service animal in a unit in a building that prohibits pets?
A. Yes, Federal law entitles residents to a reasonable accommodation for an assistance animal, even if the building has a no pet policy per the Federal Fair Housing Amendments Act.

Assistance animals are…

  • Service animals are trained to perform a task or function. One of the most common examples of this is a seeing-eye dog. 
  • Emotional support animals do not require training and provide therapeutic support.
  • Assistance animals are not deemed pets under the law!

Assistance Animal Basics…

  • Rules that apply to businesses such as airlines and restaurants per the Americans with Disabilities Act differ from what can be applied to a residential Association through the Federal Fair Housing Amendments Act.
  • Pet fees and weight/size limits do NOT apply to assistance animals.
  • Accommodations must be “reasonable.”

Requirements for a reasonable accommodation…

  • Disability or disability-related needs for the animal must be evident or medical documents must be provided.
  • Disability is a physical or mental impairment substantially limiting a major life activity.
  • An assistance animal must ameliorate the effects of the disability.

Things to consider when someone requests an assistance animal in Illinois…

  • A therapeutic relationship with the provider is required per the Illinois Assistance Animal Integrity Act.
  • Supporting documents must come from a person with a therapeutic relationship with the requester.
  • Supporting documentation can be provided by any physician or other medical professional, including a mental health service provider. 
  • A non-medical service agency in a position to know about the individual’s disability may also provide documentation.
  • Online businesses that certify or register assistance animals are insufficient since there is no therapeutic relationship.
  • Purchasing a vest or tag for an animal alone is not sufficient for documentation of a disability.

We encourage you to talk to your individual Property Manager when homeowner issues arise. We hope you have found these examples helpful, and feel free to write to us with other questions that we can address for you and your Association.