Q&A: Unfair Pet Policy

Q Our rules and regulations state that owners may not have more than 2 pets, one  of which may be a dog. One of the unit owners who also happens to be a board  member keeps 4 dogs in her unit as pets. Since she is a board member, the board  will not take action against her. Not only is this unfair, it is against the  rules. What can we do?  

 —Dogging It  

A “While the Board of Directors has the right to create rules and regulations with  respect to the operation and use of the property pursuant to Section 18.4(h) of  the Illinois Condominium Property Act (“ICPA”) it is the fiduciary obligation of the board to enforce any existing rule of  the association. See 18.4(r) of the ICPA. Furthermore, Section 18(b)(2) of the  ICPA specifically provides that the association shall have one class of  membership, which means everyone needs to be treated alike in terms of  application of the rules, regardless of whether or not they sit on the board of  directors,” explains Matthew Goldberg, Esq., of the Chicago law firm of Bancroft, Richman & Goldberg, LLC.  

 “Board members maintaining four dogs, where the rule only provides for one, is a  clear violation of the rule and the remainder of the board has a duty to  enforce the rule. Your first step should be to formally demand, in writing,  that the board enforce the rule as required. If the board fails to comply, you  have a right to bring a “derivative action” against the board to require them to enforce the rule and against the offending  unit owner/board member for their violation of the rule. A derivative action is  a right that comes from the common law and is reserved to an individual (in  this case a unit owner/member) to act on behalf of the corporation (the unit  owners association being a corporation) to enforce a right belonging to the  corporation where the board of directors has failed to do so.  

 “In addition, you may have a claim against the board directly for breaching their  fiduciary duty to you by failing to enforce the rule. Under Illinois law, a  fiduciary duty is the highest obligation one person can owe to another. It is  considered to be sacred and a violation of this duty can result in individual  liability for the board of directors. You may also be able to recover your  legal fees expended in litigating this case.”