Page 10 - The Chicagoland Cooperator Summer 2020

10 THE CHICAGOLAND COOPERATOR
—SUMMER 2020
CHICAGOCOOPERATOR.COM
Time for a new CBU?
Sales - Service - Installation
Call
Mailbox Fast LLC
www.MailboxFast.com
Wheaton, IL
630-215-7343
der 2020-32 categorized construction as
an essential service; therefore, construc-
tion and repair work are permitted for the
duration of the Governor’s Executive Or-
ders. Unit owners should communicate
with their board of managers or commu-
nity association manager before schedul-
ing any such work; unit owners, vendors,
and contractors must comply with the
association’s construction, social distanc-
ing, and related rules.
n
ARREARS...
continued from page 9
done. What are my options as an owner: do
I bring legal action against the management
or do I take legal action against the neighbor
where the cigarette smoking is coming from?
—Keep Your Smoking Away from Me
A
“Your issue involves con-
duct by a condominium
unit owner within his/her
own unit,” says James Arrigo, an attorney
at Rathje & Woodward, LLC in Wheaton.
“Th ough many states (including Illinois,
where I practice) have laws restricting
smoking in public places and at work, these
generally do not prohibit individuals from
smoking in their own residences. You do
not mention whether you have spoken to
your downstairs neighbor about this prob-
lem in an attempt to resolve the problem.
Oft en a simple conversation can avoid at-
torney fees and litigation. If you have ex-
hausted this avenue, you may have options
for legal action against your neighbor. Th e
two most common theories of recovery are
nuisance and breach of contract for acting
contrary to your association’s declaration,
depending upon the language in those cov-
enants. If you are looking for immediate
relief from the smoke, you would typically
need to seek an injunction, for which you
would need to show irreparable harm that
can’t be adequately addressed by monetary
damages. Such cases can be costly, not to
mention create tension and hard feelings
among neighbors, and you may not be able
to recoup your legal expenses even if you
eventually win.
“If, as your question suggests, your con-
dominium association does not have restric-
tions on smoking, its board may have a limit-
ed ability to take action against your smoking
neighbor. Th e association’s ability to help will
be largely dictated by the specifi c language
of your declaration related to nuisances. Be-
cause the association’s manager typically is
an employee or agent of the association who
takes direction from the board—rather than
having any power to enact restrictions on
his/her own—the manager could only help
enforce restrictions that the association has
adopted. Th e manager is therefore unlikely
to be a good target for direct legal action. In-
stead, your best course may be to encourage
the board to enact smoking restrictions, and
then to enforce them against your neighbor.
Such restrictions fall primarily into two cat-
egories: rules/regulations, and amendments
to the covenants.
“Condominiums can typically adopt rules
and regulations which restrict or prohibit
smoking in association common elements
such as hallways, entryways, and stairwells
with only board approval (aft er the necessary
notice to association members). Th e board
may also be able to impose restrictions that
require smoking unit owners to take steps to
keep their smoke from fi ltering through to
the hallways or adjacent areas through means
like installing air fi lters or ‘smoke eaters.’ Th e
eff ectiveness of such equipment may also
depend upon whether multiple units share a
heating/cooling system.
“But to impose an outright ban on smok-
ing inside individual owners’ units (which
are private property), an amendment to the
covenants is likely necessary. Such amend-
ments are prepared by the board or the as-
sociation’s attorney and must be approved
as the covenants provide. At a minimum, an
amendment will likely require approval by at
least a majority of the board and the affi rma-
tive approval of up to 75% of the unit owners.
Amendments must also be recorded against
all of the units to become eff ective. Neither
the board nor the manager is likely to have
the power to completely ban smoking in the
units if the owners decline to approve an
amendment imposing such restrictions.
“On the upside, if the requisite percent-
age of owners approve an amendment to
ban smoking in the units, courts have dem-
onstrated a willingness to enforce them even
against owners who counted on being al-
lowed to smoke when they bought their con-
dominiums. On the downside, if fellow unit
owners reject an amendment, non-smokers
may have limited recourse aside from a pri-
vate right of action for breach of contract
and/or nuisance.
“Additional issues may arise in the event
the ‘smoking’ at issue involves cannabis/mar-
ijuana and, if so, whether its use is medical or
recreational. Currently, federal law, including
the Fair Housing Act, aff ords no protection,
because marijuana use is not legal under fed-
eral law. However, some states’ laws prohibit
discrimination against tenants/occupants
who are permitted or ‘card-holding’ medical
marijuana users. We recommend consulting
with an attorney in the event your association
is considering action to ban or restrict any
type of smoking.”
n
Q&A...
continued from page 5
Disclaimer: Th e answers provided in this Q&A
column are of a general nature and cannot
substitute for professional advice regarding your
specifi c circumstances. Always seek the advice of
competent legal counsel or other qualifi ed profes-
sionals with any questions you may have regard-
ing technical or legal issues.