Q: If a condominium declaration does not expressly disallow restrictions on the rental of units, can an association pass rules and regulations restricting the right to rent units? The declaration is silent on the matter. We live in the City of Chicago.

A: If a condominium declaration is silent as to a specific right that homeowners have in the condominium association, the board of directors generally can’t arbitrarily remove a right that some or all of the members have in the association.

The right in this case is the right to lease the unit. If the condominium declaration does not prohibit the leasing of units and is silent on the issue, the unit owners should have the right to lease their units.

The fallback position for the unit owners or the board of directors of the condominium association is to see what state statute may apply to this particular case. Most states have statutes that regulate condominium associations. You would be wise to review the statute regulating condominiums in your state to determine if there is any right given to a board of directors to remove the owner’s rights to lease their condominium units.

In the absence of a state law allowing the condominium board to remove that right, the only way the board can regulate leases in the condominium would be to amend the condominium declaration to prohibit leases or to restrict leases.

In your case, if the board of directors does not have the right to restrict the leasing of units and the enactment of a rule prohibiting leases might be invalid, but that does not mean that the condominium board may not try to proceed as if the rule were valid. The forces of a condominium association may come into play as might the personalities involved.

You may want to address this issue with the condominium board by requesting that they obtain a legal opinion from an attorney that concentrates his or her practice in condominium law. That attorney may confirm your suspicion that the board did not have the right to regulate leasing in your building.

But that attorney may also find other language in the condominium declaration that gives the board the right to restrict leases. You’ll have to wait and see what comes up from those discussions or you’ll have to bring the battle to them and sue them to stop them from enforcing the rule. Before you decide to sue them, you then would have to bear the burden of hiring an attorney to review your documentation to determine whether you should sue the board or not.

Certainly, suing your neighbors is not a good proposition. It can make life difficult and unpleasant for you. So before you sue, you should first try to work it out or find out where your neighbors stand on this issue.

If all of your neighbors are in agreement with the rule restricting leases, you might be out of luck. All of the other unit owners could get together to amend the declaration to prohibit leases in the building or restrict them.

Published: Aug 14, 2008