Page 31 - CooperatorNews Chicagoland EXPO 2021

CHICAGO.COOPERATORNEWS.COM COOPERATORNEWS CHICAGOLAND — EXPO 2021 31 and may also allow individual owners to also bring suit to prevent other residents from engaging in noxious and offensive behavior. “Whether behavior is noxious and offensive is a subjective standard. Not only can reasonable people disagree as to whether certain behavior is noxious and offensive, but other factors can be considered as well. Noise at 7:00 p.m. on a Saturday night will likely be looked at differently than noise at 4:00 a.m. on a Monday morning. For these reasons, convincing a judge or jury that behav- ior is noxious and offensive can be dif- ficult. Before filing any sort of lawsuit to enforce a noxious and offensive behavior covenant, we advise our clients to obtain statements from as many potential wit- nesses as possible. Then we need to get these witnesses’ agreement to testify, should it be needed. Even then, success is not guaranteed. “\[The reader’s friend’s\] specific in- stance, in which the persons acting in a noxious and offensive manner are chil- dren, presents additional problems for community associations. This is because under the Fair Housing Act, a commu- nity association is deemed to be a ‘hous- ing provider.’ As a housing provider, the association is legally prohibited from discriminating against residents based upon their familial status. This means that children, and families with children, cannot be treated differently than other residents. Further, rules and covenants aimed at children must be reasonable. This means that in enforcing a subjective covenant against a family with children, an association risks not only being un- able to convince a judge that the behavior is noxious and offensive, but also a claim by the family that the association is tar- geting them due to having children. This is not to say that families with children are incapable of acting in a noxious and offensive manner, and that the covenant cannot be enforced against them. It sim- ply needs to be pointed out that an action by an association to enforce such a provi- sion presents added risk. For this reason, many boards are reluctant to bring this type of litigation. “I suggest \[the friend\] again reach out to the family and see if a meeting can be arranged in which the issues are dis- cussed. \[The friend\] should also consider having the association attend or even arrange for the meeting. Even if such a meeting does not result in the behavior stopping, it will be useful to show a judge that attempts short of litigation were re- peatedly attempted. \[The friend\] should also do her best to document and record each and every situation so that these sit- uations can be accurately recalled in the event litigation is necessary. Finally, if the association will not take action (which is possible due to concerns of discrimina- tion claims), \[the friend\] can consider bringing her own action against the neighbors to obtain a court order.” Dishwasher Dilemma Q Our association is self-managed with 12 units. An owner in- stalled a dishwasher without any written request to or approval from the board. The board told her that we believed this was a violation, since all 12 units share one water tank and one water meter. The water bill is included and paid with month- ly assessments, and is the highest utility bill that the association pays. Our bylaws were written in the 70’s, and laws change. The owner’s defense here is that the dishwasher uses less water than doing dishes by hand. Are they in violation for not clearing the installation with the board beforehand? If so, what are our options? —Scrubbing in Skokie A “There are two consid- erations with regard to a possible pre-approval re- quirement for the installation of a dish- washer,” says Michael C. Kim, of counsel at Chicago law firm Schoenberg Finkel Beederman Bell Glazer. “First, the decla- ration/bylaws/rules of the condominium may specifically provide that dishwash- ers (or similar appliances such as clothes washers) may not be installed in units without the prior approval of the board of directors. Alternatively, the use of the common plumbing system is subject to reasonable restrictions adopted by the board of directors, typically based upon the capacity of the system to handle such an appliance. If the declaration/bylaws/ rules do not require prior board approval for the installation of a dishwasher and the plumbing system can accommodate such an appliance, then there would be no violation. “It is possible that dishwashers are now more efficient and use less water than hand-washing dishes or engaging in other water-related usage (such as taking long showers). With regard to common- ly metered utilities (such as having one water bill for the entire building), there is always the potential that some unit owners may utilize that utility in greater proportion than another; such variations in usage is expected. If the unit owner were ‘overusing’ the water supply (for ex- ample, by operating a home beauty salon within his/her unit and thereby using es- sentially a commercial volume of water), then there may be an argument that such usage is excessive beyond normal resi- dential needs. “Finally, if the unit owners amend the declaration/bylaws to require pre- Q&A continued from page 7 vate entrance from the lobby and a shared amenity floor that is exclusive to those units. Rents for this “high-end penthouse collection” will start at $9,000, according to TRD. The outlet points out that the down- town condo market has shown signs of recovery recently—Parkline’s sales strug- gle notwithstanding. Buyers have started to be priced out of suburban homes, and others just see value in the city as it eases out of the pandemic. On the other hand, the delta variant and life post-pandemic make many would-be buyers hesitant to commit long term, making renting a more appealing option … for now. n PULSE continued from page 6 Please submit Pulse items to Darcey Gerstein at darcey@cooperatornews.com Disclaimer: The answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specific circumstances. Always seek the advice of competent legal counsel or other qualified profes- sionals with any questions you may have regard- ing technical or legal issues. Do you have an issue with your board? Are you wondering how to solve a dispute with a neighbor? Can’t find informa- tion you need about a building’s finances? Our attorney advi- sors have the answers to all of your legal questions. Write to CooperatorNews Chicagoland and we’ll publish your ques- tion, along with a response from one of our attorney advisors. Questions may be edited for taste, length and clarity. Send your questions to: darcey@cooperatornews.com. Q&A changes in approach are already under- way. “In today’s construction, we are very mindful of climate change,” he says. “Everything from paint, to compound, to insulation and other materials have changed to fulfill a more eco-friendly green standard. Green building materials with low—or even no—embodied carbon are on the rise. These materials produce little to no carbon or other greenhouse gases, and are overall environmentally more beneficial. Many projects are now one hundred percent green. Architects are really stepping it up as well, in both how they plan a job and in adhering to new building requirements. They are tak- ing climate change seriously.” Co-op and condominium boards must also consider the future well-being of their physical plant. “There should be some kind of best business practice, like guidelines for what kind of reserves must be maintained,” says Zimmerman. “Re- quired capital funds of a certain percent- age of value of property for instance, so that money is available for major capital expenditures. Boards should hire archi- tects and engineers to explore their vul- nerabilities—and as we learned from the Surfside condo collapse in Florida, re- serve funds will become more and more critical. No board president wants to be faced with a report that says the proper- ty needs millions of dollars of work and they have $100 in the reserve account.” “The timeframe to make your plans is now,” Keating stresses. “Don’t wait. In- surance is getting more and more com- plicated. Insurance companies always look to avoid risk, so they may refuse to insure some projects or buildings. The more storms, wildfires, and so forth we have, the more insurance premiums will go up—and they \[may\] reach a threshold where insurers feel it’s not worth the risk. There will be fewer and fewer companies offering protection.” Varsalona concurs. “You’ve got to do it now,” he says. “If you don’t start now, you will be caught late.” Climate change is no longer an ab- stract concept to be debated based on what side of the political divide we find ourselves on. It’s real, and according to both the science and the practical advice of professionals working in the field, it’s past time to start acting, rather than re- acting. At this point, an ounce of preven- tion is worth way more than a pound of cure. Start mitigating now. n A J Sidransky is a staff writer/reporter for CooperatorNews, and the author of several published novels. approval or to prohibit installation of dishwashers, then such limitations can be imposed by an amendment to the docu- ments. As for adopting a rule to prohibit the installation and use of dishwashers, in general, rules must be ‘reasonable’ and, if a dishwasher in fact does not consume an extraordinary amount of water but rather is more efficient than hand-wash- ing dishes, then a rule prohibiting use of a dishwasher may be considered unrea- sonable and therefore unenforceable.” n