December 2019 Legal Update

Several statutory and regulatory changes relevant to Illinois community associations recently became or soon will become effective. A summary of the most significant changes is provided below.

Illinois Assistance Animal Integrity Act

Federal and Illinois fair housing laws and local fair housing ordinances collectively require that community associations grant reasonable accommodations to residents with disabilities when necessary to afford the residents full enjoyment of the association property. If a community association’s governing documents prohibit residents from keeping pets, these fair housing laws and ordinances generally require that a disabled resident nevertheless be permitted to have an assistance animal as an accommodation under the governing documents, provided that the resident sufficiently demonstrates that the resident is legally disabled and that there is a sufficient connection between the disability and the need for an assistance animal, and provided further that the accommodation request must be reasonable. If the disability and the need for the accommodation are known or readily apparent, an association should not make further inquiry regarding the disability. However, if the disability and need for the accommodation are not known or readily apparent, an association can request that the resident provide certain limited information verifying the existence of a disability and demonstrating the connection between the disability and the requested accommodation.

The Illinois Assistance Animal Integrity Act helps clarify what information an association may request when evaluating assistance animal requests. The Act specifies that, when a resident’s need for an assistance animal is not known or readily apparent to an association, the association can require that the resident provide verification of the need for the assistance animal from an individual having a legitimate “therapeutic relationship” with the resident. The verification need not necessarily be furnished by a health care provider but can be given by any “reliable third party” who has conducted a “meaningful assessment” of the resident’s disability and is in a “position to know about” the disability. Purported certifications provided by online businesses without a meaningful assessment of the resident’s disability or need for an assistance animal do not constitute sufficient verification of the resident’s legal right to an assistance animal.

The Assistance Animal Integrity Act recognizes that some associations must contend with disability-related needs of multiple residents (e.g., when one resident has a need for an assistance animal and a neighboring resident has a serious allergy and cannot be exposed to animals). Under these circumstances, an association “must attempt to balance the disability-related needs of all residents.” The Act also clarifies that, if a resident requests more than one assistance animal, the association may request proper verification of the need for each animal, unless the need for the animal is apparent. In addition, the Act insulates associations from liability for injuries caused by an assistance animal allowed as a reasonable accommodation.

The Assistance Animal Integrity Act will become effective on January 1, 2020. This law applies to residential housing providers, including condominium associations, homeowners associations and cooperatives.

Illinois Cannabis Law Adds New Section 33 to Illinois Condominium Property Act

On June 25, 2019, the Illinois Cannabis Regulation and Tax Act was signed into law. The Cannabis Act legalizes the use of cannabis for recreational purposes in Illinois effective January 1, 2020. The Cannabis Act also adds a new Section 33 to the Illinois Condominium Property Act. Section 33, which applies only to condominium associations, states as follows:

The condominium instruments of an association may prohibit or limit the smoking of cannabis, as the term “smoking” is defined in the Cannabis Regulation and Tax Act, within a unit owner’s unit. The condominium instruments and rules and regulations shall not otherwise restrict the consumption of cannabis by any other method within a unit owner’s unit, or the limited common elements, but may restrict any form of consumption on the common elements.

The Cannabis Act defines “smoking” as “the inhalation of smoke caused by the combustion of cannabis.”

Under Section 33, a condominium association may prohibit the smoking of cannabis within units only by amending the association’s recorded declaration and bylaws. Condominium associations may not prohibit cannabis consumption by methods other than combustion within units. Condominium associations may restrict cannabis consumption in any form on the general common elements via the adoption of rules and regulations. Section 33 became effective on June 25, 2019.

Illinois Community Association Manager Licensing and Disciplinary Act

The Illinois Community Manager Licensing and Disciplinary Act was scheduled to expire at the end of the 2019 calendar year. A two-year extension of this statute became effective on December 20, 2019.

New Chicago Condominium Ordinance Provision Relating to Deconversions

The recent trend of deconverting Chicago-area condominium developments into apartments under Section 15 of the Illinois Condominium Property Act continued in 2019. The City of Chicago has adopted an addition to the City’s condominium ordinance requiring that Section 15 bulk unit sales be approved by not less than 85 percent of a condominium’s unit owners, unless a greater percentage is provided for in the condominium’s declaration or bylaws. This addition became effective on October 16, 2019.

FHA Condominium Approvals

The U.S. Department of Housing and Urban Development has issued new regulations easing the process for obtaining an FHA condominium unit mortgage loan. Effective October 15, 2019, a condominium association is no longer required to obtain a blanket FHA certification covering the entire condominium property in order for a unit purchaser to obtain FHA mortgage financing. With this change, the FHA now will resume using a single-unit approval process (formerly known as “spot approvals”). Subject to certain limitations, this change will allow condominium unit purchasers access to FHA loans without the association having to undertake the burdensome and expensive process of obtaining blanket certification. Also, the new regulations extend blanket FHA certifications from two years to three years, streamline the blanket recertification process and loosen certain criteria for approval of blanket certifications.