This past summer, an Illinois appellate court answered this question in a case of first impression.  In Ripsch v. Goose Lake Association, 2013 Il. App. 3d 120319, the Third District appellate court held that an association (in this case a homeowner’s association) could enact rules and regulations for the common areas even when the recorded covenants did not expressly grant that right to the association.

Most condominium associations have some form of common element regulation in their declarations that allow the Board to enact reasonable rules and regulations for the common elements.  This could be as simple as a general “no nuisance” provision, or one that goes farther in the declaration to set forth specific areas that may be regulated, such as a pool.  Homeowners associations are a little bit different and many homeowners association declarations have less specific terms.  

The Third District held that HOAs have an implied or inherent authority to regulate common area use.  This holding, though not yet echoed by other districts or appealed further, may add extra support to associations facing uncertain regulatory authority over the common elements.  

An important concept to note is that some form of rules and regulations may actually be a restriction that must be in the declaration, and operate by law as a covenant on how the property is used.  Good examples of this type of a restriction, such as a rental restriction or a limitation on leasing terms, are types of restrictions that have a significant limitation on how someone many use their unit in relation to other units.  Restrictions on unit use should usually be part of the covenants and the declaration for the property, and are not, normally, enforceable if just made part of the rules.  Rules and regulations are best made for regulating use of the common portions of the association.  

Since every rule can differ, boards should consult their attorney for specific guidance on whether a rule is best placed in the rules and regulations or if it needs to be included in the declaration.

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