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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  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:  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

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