Typically, the governing documents of an association consist of various documents including a declaration, by-laws and rules and regulations. Associations are also bound by statute—condominium associations are bound by the Illinois Condominium Property Act (“Condo Act”) and common interest communities are bound by the Common Interest Community Association Act (“CICAA”). Due to the variety of documents an association is bound by, confusion often arises when there are conflicting provisions and/or requirements in the governing documents or applicable statute.
It is important to remember the following hierarchy when it comes to your association:
- Condo Act/CICAA
- Declaration
- By-Laws
- Rules and Regulations
When there is a conflict between a provision of the Condo Act or CICAA and any of an association’s governing documents, the Condo Act/CICAA will always prevail. For example, Section 18(a)(10) of the Condo Act requires that the board of directors meet at least four times a year, but your association’s By-laws only require the board to meet at least once a year. How many times must the board of directors meet in a year? The answer is four times a year because the provisions of the Condo Act will always trump any conflicting or lesser requirement set forth in an association’s governing documents. It is important to keep in mind, however, that an association may provide for even stricter requirements than the requirements set forth in the Condo Act and CICAA. For example, your association’s governing documents can require more than four board meeting per year and still be enforceable.
When there is a conflict between a provision of the association’s declaration and the association’s rules and regulations, the declaration will prevail. For example, an association’s declaration may allow for certain items to be stored on Unit balconies, such as flowerpots and patio furniture, but the rules and regulations may state that no items can be stored on Unit balconies. Since there is a conflict between the two documents, the provision in the declaration allowing for flowerpots and patio furniture will prevail and the rule restricting the storage of items on a balcony will not be enforceable.
In order to ensure consistency and continuity amongst the Condo Act/CICAA and the association’s governing documents, it is important that the documents be regularly reviewed and updated to avoid conflicting provisions and confusion. If a conflict is identified, then the board should amend the conflicting provision to eliminate the conflict.
Please contact Tressler if your association would like assistance in reviewing your association’s governing documents.