Consistent with prior rulings, Illinois courts have shown a fondness to expand a condominium board’s duties in ensuring “due process” in violation hearings. In Board of Directors of Winnitt Park Condominium Association v. Bourdage, the court refused to uphold a fine imposed at a violation hearing that was held at a time when the board knew the accused unit owner was unavailable. The condominium board issued a notice of violation to a unit owner and, after the owner requested a hearing, the board provided two alternative hearing dates. In response, the unit owner asserted that her business was open until 7:00 p.m. and she could not attend the selected dates. Thereafter, the board scheduled a violation hearing on another date, and the unit owner responded that she was unavailable for the hearing on that date as well. Nonetheless, the board proceeded with the hearing and imposed a fine. When the unit owner failed to pay the fine, the board filed suit under the Eviction Act. The owner denied that the fines were owed because she had not received adequate notice or a meaningful opportunity to be heard as required by the Condo Act, and the Illinois Appellate Court agreed with the unit owner’s position. The court found that because the unit owner had repeatedly flagged the proposed hearing dates as problematic for her, the scheduling of the hearing at a time when she could not participate did not provide the unit owner with adequate due process. The court was particularly concerned with the board’s “take-it-or-leave-it” scheduling, especially in light of the association’s hearing procedures that indicated it would make efforts to accommodate unit owners’ schedules. However, the court also noted that the owner could not continually use her business hours as an excuse not to attend a hearing and that she must close her business a few hours early to appear at a hearing.
Because of this case, associations must exercise greater care and specificity when issuing violation notices, scheduling violation hearings, conducting violation hearings and imposing “reasonable” fines.
The violation process can be tricky and is full of nuances. Be sure to review your Association’s governing documents regarding this process. It is important to have written policies on file and to follow such. We are able to assist your community regarding the violation process and many other issues.
For more information about this article, contact Tressler LLP attorney Matthew O’Malley [1] at momalley@tresslerllp.com [2].