I was recently asked whether I believed the board should adopt an Amended and Restated Declaration. The purpose of an amended and restated declaration is to take the association’s current declaration, delete all provisions which conflict with the provisions of the Illinois Condominium Property Act (“Act”) and add all the provisions of the Act which apply to the association.
Amended and restated declarations have become very popular over the last several years. The reason is that many associations are getting older, and since the declarations were drafted, there have been a number of changes in the Act. Of specific importance, is the amendment to Section 2.1.
Section 2.1 of the Act was amended in 1995 to provide that any provisions in an association’s declaration of condominium ownership which are contrary to the provisions of the Act, shall be void. The provisions of the Act shall control. This change has more than likely rendered a number of provisions in an association’s declaration unenforceable. In addition, there are a number of provisions in the Act which may not currently be in your association’s declaration. These also apply to your association and govern a board’s right to adopt policy for the effective administration of the association.
The contradictions between the Act and a declaration tend to create confusion among the unit owners and the board members as to which covenants govern the association. For instance, I have attended a number of meetings where the board has enacted a special assessment. The owners believed the Board had acted improperly, came to the meeting in mass and were quite agitated because they believed the special assessment was adopted against Illinois law. Their belief was based on a provision in the declaration which requires the approval of the owners prior to enacting a special assessment. The owners were misinformed and they did not know that the Act was amended to grant the Board the right to adopt a special assessment in some instances without the consent of the owners. If the declaration had been amended to provide for this right, a horrible meeting could have been avoided.
Based on the number of inconsistencies in most association declarations recorded prior to 1995, I believe all boards should give strong consideration to adopting an amended and restated declaration. However, in doing so, the Board must first determine whether there are any necessary repairs to the common elements, which will need to be put on hold due to a lack of funds. Obviously, if the roof was leaking and the association did not have adequate funds to repair the roof, it would be frivolous to spend money on an amended and restated declaration. However, if all necessary maintenance, repair and replacements of the common elements are being taken care of, and the association is in good financial shape, I believe that all associations whose declarations were adopted prior to 1995 should adopt an amended and restated declaration.
An amended and restated declaration, unlike an amendment to restrict leasing, pets or change maintenance responsibilities, does not need the approval of the owners. Since an amended and restated declaration does not change the owner’s rights, but simply clarifies them, the approval of two-thirds (2/3) of the board members is all that is required.
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