Q&A: Which Rules Rule?

Q&A: Which Rules Rule?

Q. Does binding alternative dispute resolution (ADR) override condo governing docs? If the ADR changes the shared common ground expenses, do the members of the association have to vote on the changes? Do the condo docs have to be changed to reflect the decision of the arbitrator? 

                                  —Seeking Clarity

A. Attorney Ben Rooney of law firm Keay & Costello, P.C. with offices in Wheaton and Chicago responds, “The question is really, ‘Is mandatory ADR for condominium association disputes permitted in Illinois? And if so, can a decision made pursuant to ADR amend the provisions of an association’s governing documents, and do the governing documents need to be changed to reflect the decision?’

“In that framework, while there are some matters that cannot be subject to ADR, many association disputes can be subject to mandatory ADR if the declaration or bylaws provide for it. Section 32 of the Illinois Condominium Property Act states that the declaration or bylaws of a condominium association may require mediation or arbitration of disputes when the matter in controversy does not have a specific monetary value or has a value of $10,000 or less, with the exceptions of levying and collection assessments, or if the controversy comes from violations of the condominium’s governing documents. (765 ILCS 605/1).

“As for whether a decision made pursuant to ADR can amend an association’s governing documents; it cannot. The governing documents can only be amended as permitted within the documents themselves, or the Illinois Condominium Property Act. This is generally accomplished when a supermajority of the association members approves the change. Furthermore, the ruling made in ADR is only binding upon the parties subject to the ADR. Even if the association itself is a party, and the issue revolves around its governing documents, it is most likely that the arbiter is being asked to interpret the governing documents. As such, the decision would actually be determining what the governing documents require or provide, not a ruling that they be amended. With this in mind, while the outcome of an ADR may persuade an association 

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