This case involved a dispute between a condominium owner (“Owner”) and her homeowners association (“Association”) over Association’s right to impose a $1.01 million dollar special assessment on Association’s members to remediate the 90 balconies attached to homeowners’ units. In an action filed by Owner, she sought an injunction that prohibited Association from levying the special assessment on homeowners and entering into a contract for the contemplated work.
Why The Owner Contended Special Assessment Imposed
Owner contended that, because the intended special assessment exceeded a specified amount, the imposition of the intended special assessment was subject to nullification by an owner referendum (vote of the homeowners) under Association’s governing documents and the applicable provisions of the Illinois Condominium Property Act. Because the intended special assessment exceeded a specified limit (115% of the sum of the prior year’s assessments), Owner and 21 other unit owners petitioned Association’s board of directors to call an owner referendum vote on the intended special assessment. After Association refused to schedule the requested vote by the homeowners, Owner filed suit against Association.
Association Contends Special Assessment Necessary
In defense of the action, Association contended that, irrespective of the size of the intended special assessment, because the purpose of the special assessment was to address an emergency situation, and to comply with something that is mandated by law, the owners were not entitled to attempt to nullify the special assessment through a referendum vote under Illinois law.
What Did The Trial Court Think?
The trial court found that, because 56 of the 90 balconies could not withstand the 200-pound load requirement imposed by the applicable local building code, the remediation of the balconies was an “emergency” and was “mandated by law.” Accordingly, the trial court denied the injunction requested by Owner and Owner appealed.
Owner Disagrees With Ruling and Appeals
In her appeal, Owner contended that the evidence presented to the trial court showed that only a small number of balconies presented an immediate danger and that, while the refurbishment of all of the balconies might be prudent and a sign of good property management, it was not an emergency and the replacement of all of the balconies was not mandated by law.
The Appellate Courts Final Decision
The appellate court found that the record of the trial court proceedings demonstrated that 56 of the 90 balconies posed “imminent safety risks” to the unit owners and constituted an emergency, and that 80 to 85% of the total cost to remediate all of the balconies was required to repair the 56 dangerous balconies. The appellate court also found that the record further demonstrated that the condition of the 56 dangerous balconies violated the local building code requirements which mandate that balcony railings be capable of withstanding 200 pounds of load pressure. As a result, the dangerous balconies posed safety risks and constituted an ’emergency” for which remediation was mandated by law. Accordingly, there was no right to a homeowner referendum vote on the special assessment and the trial court’s judgment was affirmed.
Illinois Appellate Court decision (May 17, 2018)
See case decision: Dedic_v._Bd._of_N._Shore_Towers_Condo._Ass’n
This case involved a dispute between a homeowners association (“Association”) and a homeowner (“Owner”) over the imposition by Association of a special HOA emergency assessment in the amount of $1.01 million to remediate all of the 90 balconies in the complex. After determining, based on the opinion of a structural engineer employed by Association, that some (but not all) of the 90 units had varying degrees of visible problems with their 40 year old balconies, Association’s board voted to impose the special assessment intended to raise needed funds to repair all of the balconies on an emergency basis. By determining that the assessment was being imposed as an HOA emergency assessment, Association’s board was able to approve the assessment without a vote by the members of Association.
Accordingly, Owner contended that only a handful of the 90 balconies within the complex presented an immediate danger and that the need for the general refurbishment of all of the balconies was not an “emergency” situation. Furthermore, Owner contended that Association’s members had a right to challenge the imposition of the special assessment and filed the action seeking an injunction to prevent Association from proceeding with the special assessment and the contemplated repairs on an emergency basis.
The trial court determined that the requisite emergency existed to justify the imposition of the special assessment by Association without a vote by the members of Association and thus denied the injunctive relief that was sought by Owner. Owner then appealed the trial court’s decision.
Did the Owner Prevail in their Appeal?
The appellate court found that the trial court record demonstrated that 56 of the 90 balconies within the complex were deteriorated to the point that they posed “imminent safety risks” to the unit owners and that such a condition constituted an “emergency” under Association’s governing documents and the applicable law. The appellate court also determined that remediation of certain of the balconies was “mandated by law” because they did not comply with certain local building code requirements. Based on these findings, the appellate court ruled that Association’s HOA emergency assessment was appropriate.
UNPUBLISHED Illinois Appellate Court decision (March 29, 2018).
See case decision: Dedic_v._Bd._of_N._Shore_Condo._Ass’n_2018_IL_App_(1st)_171842-U_(Ill._App._2018)1