Should patio owners pay for decks?

Q. We are a common interest community association of more than 50 townhouse units. Last year the board approved a special assessment to cover the reserve shortfall for the replacement of all the wood decks of individual townhouse units. However, not every unit has a wood deck; some units have a patio instead. The association is responsible for maintenance, repair and replacement of these wood decks and patios

The special assessment section of our declaration states that "Any special assessment shall be levied against all Lots in equal shares." Is it legal under the Common Interest Community Association Act to be specially assessed for an element we do not possess?

A. The Common Interest Community Association Act does not address the issue, so the language in the association's declaration would control this matter. As such, a special assessment levied by the association would be allocated among all of the units in equal shares. All units, whether or not they have a wood deck, would be responsible for the special assessment; just like all units are responsible for the regular assessments.

This is the nature of the beast in community association living. There are any number of expenses that are shared without regard to actual usage by a particular unit or owner. Some of this "inequity" is resolved in the condominium form of ownership through the concept of "limited common elements" and the charge back of maintenance of the limited common element to the owner of the unit. That is not a concept established in the Common Interest Community Association Act, and is rarely found in the covenants for a common interest community association.

Q. I recently requested copies of our condominium association's monthly financial statement. My request was initially denied, until I provided the board with a copy of Section 19 of the Illinois Condominium Property Act. My request was then granted. However, I was advised I would have to pay $10 for the two-page document. I contend this is being charged to discourage owners from making requests for these documents, as the association doesn't charge for copies of other records. Can the association charge me for these documents?

A. As you note, Section 19 of the Illinois Condominium Property Act governs the examination and copying of books and records by owners. That section addresses the charges that can be imposed on owners.

The association may charge the actual cost to the association of retrieving and making requested records available for inspection and examination to the requesting member. If an association's property manager charges the association to retrieve records, this sum could be charged to the owner.

If a member requests copies of records, the actual costs to the association of reproducing the records may also be charged by the association to the requesting member. Copy charges would be an example of this.

That said, it may be difficult for an association to justify a flat fee for retrieving and providing copies of books and records, if the sum does not reflect the above criteria.

Q. A friend of mine said owners in his condominium do not own the ground on which the buildings are located. He said the ground is leased, and his association is a "leasehold condominium." What does that mean?

A. The Illinois Condominium Property Act permits what is known as a "leasehold condominium." A leasehold condominium means a property submitted to the provisions of the Act, which is subject to a lease, the expiration or termination of which would terminate the condominium.

Further, the lessor of the property must meet certain qualifications. The lessor must be (i) exempt from taxation under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, (ii) a limited liability company whose sole member is exempt from taxation under Section 501 (c)(3) of the Internal Revenue Code of 1986, as amended, or (iii) a Public Housing Authority created pursuant to the Housing Authorities Act that is located in a municipality having a population in excess of 1 million inhabitants.

Leasehold condominiums are very rare in Illinois.

• 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.