Sen. Heather A. Steans

Filed: 11/18/2014

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 4204

2    AMENDMENT NO. ______. Amend House Bill 4204 by replacing
3everything after the enacting clause with the following:
 
4    "Section 1. Short title. This Act may be cited as the
5Condominium and Common Interest Community Ombudsperson Act.
 
6    Section 5. Applicability. This Act applies to all
7condominium associations governed by the Condominium Property
8Act and all common interest community associations governed by
9the Common Interest Community Association Act.
 
10    Section 10. Findings. The General Assembly finds as
11follows:
12        (1) Managing condominium property or common interest
13    community property is a complex responsibility. Unit
14    owners and persons charged with managing condominium
15    property or common interest community property may have

 

 

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1    little or no prior experience in managing real property,
2    operating a not-for-profit association or corporation,
3    complying with the laws governing condominium property or
4    common interest community property, and interpreting and
5    enforcing restrictions and rules imposed by applicable
6    instruments or covenants. Unit owners may not fully
7    understand their rights and obligations under the law or
8    applicable instruments or covenants. Mistakes and
9    misunderstandings are inevitable and may lead to serious,
10    costly, and divisive problems. This Act seeks to educate
11    unit owners, condominium associations, common interest
12    community associations, boards of managers, and boards of
13    directors about the Condominium Property Act and the Common
14    Interest Community Association Act. Effective education
15    can prevent or reduce the severity of problems within a
16    condominium or common interest community.
17        (2) Anecdotal accounts of abuses within condominiums
18    and common interest communities create continuing public
19    demand for reform of condominium and common interest
20    community property law. This results in frequent changes to
21    the law, making it difficult to understand and apply, and
22    imposes significant transitional costs on these
23    communities statewide. By collecting empirical data on the
24    nature and incidence of problems within these communities,
25    this Act will provide a sound basis for prioritizing reform
26    efforts, thereby increasing the stability of condominium

 

 

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1    and common interest community property law.
 
2    Section 15. Definitions. As used in this Act:
3    "Association" means a condominium association or common
4interest community association as defined in this Act.
5    "Board of managers" or "board of directors" means:
6        (1) a common interest community association's board of
7    managers or board of directors, whichever is applicable; or
8        (2) a condominium association's board of managers or
9    board or directors, whichever is applicable.
10    "Common interest community" means a property governed by
11the Common Interest Community Association Act.
12    "Common interest community association" has the meaning
13ascribed to it in Section 1-5 of the Common Interest Community
14Association Act.
15    "Condominium" means a property governed by the Condominium
16Property Act.
17    "Condominium association" means an association in which
18membership is a condition of ownership or shareholder interest
19of a unit in a condominium, cooperative, townhouse, villa, or
20other residential unit which is part of a residential
21development plan and that is authorized to impose an
22assessment, rents, or other costs that may become a lien on the
23unit or lot, and includes a unit owners' association as defined
24in subsection (o) of Section 2 of the Condominium Property Act
25and a master association as defined in subsection (u) of

 

 

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1Section 2 of the Condominium Property Act.
2    "Declaration" has the meaning ascribed to it in:
3        (1) Section 1-5 of the Common Interest Community
4    Association Act; or
5        (2) Section 2 of the Condominium Property Act.
6    "Department" means the Department of Financial and
7Professional Regulation.
8    "Director" means the Director of the Division of
9Professional Regulation.
10    "Division" means the Division of Professional Regulation
11within the Department of Financial and Professional
12Regulation.
13    "Office" means the Office of the Condominium and Common
14Interest Community Ombudsperson established under Section 20
15of this Act.
16    "Ombudsperson" means the Condominium and Common Interest
17Community Ombudsperson employed under Section 20 of this Act.
18    "Person" includes a natural person, firm, association,
19organization, partnership, business trust, corporation,
20limited liability company, or public entity.
21    "Secretary" means the Secretary of Financial and
22Professional Regulation.
23    "Unit" means a part of the condominium property or common
24interest community property designed and intended for any type
25of independent use.
26    "Unit owner" has the meaning ascribed to it in:

 

 

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1        (1) subsection (g) of Section 2 of the Condominium
2    Property Act; or
3        (2) Section 1-5 of the Common Interest Community
4    Association Act.
 
5    Section 20. Office of the Condominium and Common Interest
6Community Ombudsperson.
7    (a) There is created in the Division of Professional
8Regulation within the Department of Financial and Professional
9Regulation, under the supervision and control of the Secretary,
10the Office of the Condominium and Common Interest Community
11Ombudsperson.
12    (b) The Department shall employ an Ombudsperson and other
13persons as necessary to discharge the requirements of this Act.
14The Ombudsperson shall have the powers delegated to him or her
15by the Department, in addition to the powers set forth in this
16Act.
17    (c) Information and advice provided by the Ombudsperson has
18no binding legal effect and is not subject to the rulemaking
19provisions of the Illinois Administrative Procedure Act.
 
20    Section 25. Training and education. On or before July 1,
212018, the Ombudsperson shall offer training, educational
22materials, and courses to unit owners, associations, boards of
23managers, and boards of directors in subjects relevant to: (i)
24the operation and management of condominiums and common

 

 

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1interest communities; and (ii) the Condominium Property Act and
2the Common Interest Community Association Act.
 
3    Section 30. Website.
4    (a) The Office shall maintain on the Department's website
5the following information:
6        (1) the text of this Act, the Condominium Property Act,
7    the Community Interest Community Association Act, and any
8    other statute, administrative rule, or regulation that the
9    Ombudsperson determines is relevant to the operation and
10    management of a condominium association or common interest
11    community association;
12        (2) information concerning nonjudicial resolution of
13    disputes that may arise within a condominium or common
14    interest community;
15        (3) a description of the services provided by the
16    Ombudsperson and information on how to contact the
17    Ombudsperson for assistance; and
18        (4) any other information that the Ombudsperson
19    determines is useful to unit owners, associations, boards
20    of managers, and boards of directors.
21    (b) The Office shall make the information described in
22subsection (a) of this Section available in printed form.
 
23    Section 35. Written policy for resolving complaints.
24    (a) Each association, except for those outlined in Section

 

 

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1(b) of this Section, shall adopt a written policy for resolving
2complaints made by unit owners. The association shall make the
3policy available to all unit owners upon request. The policy
4must include:
5        (1) a sample form on which a unit owner may make a
6    complaint to the association;
7        (2) a description of the process by which complaints
8    shall be delivered to the association;
9        (3) the association's timeline and manner of making
10    final determinations in response to a unit owner's
11    complaint; and
12        (4) a requirement that the final determination made by
13    the association in response to a unit owner's complaint be:
14            (i) made in writing;
15            (ii) made within a reasonable time after the unit
16        owner's original complaint; and
17            (iii) marked clearly and conspicuously as "final".
18    (b) Common interest community associations exempt from the
19Common Interest Community Association Act are not required to
20have a written policy for resolving complaints.
21    (c) No later than 180 days after the effective date of this
22Act, associations existing on the effective date of this Act,
23except for those identified in subsection (b) of this Section,
24must establish and adopt the policy required under this
25Section.
26    (d) Associations first created after the effective date of

 

 

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1this Act, except for those identified in subsection (b) of this
2Section, must establish and adopt the policy required under
3this Section at the time of initial registration as required by
4Section 65 of this Act.
5    (e) A unit owner may not bring a request for assistance
6under Section 40 of this Act for an association's lack of or
7inadequacy of a written policy to resolve complaints, but may
8notify the Department in writing of the association's lack of
9or inadequacy of a written policy. An association that fails to
10comply with this Section is subject to subsection (g) of
11Section 65 of this Act.
 
12    Section 40. Requests for assistance.
13    (a) Beginning on July 1, 2019, unit owners meeting the
14requirements of this Section may make a written request, as
15outlined in subsection (f) of this Section, to the Ombudsperson
16for assistance in resolving a dispute between a unit owner and
17an association that involves a violation of the Condominium
18Property Act or the Common Interest Community Property Act.
19    (b) The Ombudsperson shall not accept requests for
20resolutions of disputes with community association managers,
21supervising community association managers, or community
22association management firms, as defined in the Community
23Association Manager Licensing and Disciplinary Act.
24    (c) The Ombudsperson shall not accept requests for
25resolutions of disputes for which there is a pending complaint

 

 

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1filed in any court or administrative tribunal in any
2jurisdiction or for which arbitration or alternative dispute
3resolution is scheduled to occur or has previously occurred.
4    (d) The assistance described in subsection (a) of this
5Section is available only to unit owners. In order for a unit
6owner to receive the assistance from the Ombudsperson described
7in subsection (a) of this Section, the unit owner must:
8        (1) owe no outstanding assessments, fees, or funds to
9    the association, unless the assessments, fees, or funds are
10    central to the dispute;
11        (2) allege a dispute that was initiated or initially
12    occurred within the past 2 calendar years of the date of
13    the request;
14        (3) have made a written complaint pursuant to the unit
15    owner's association's complaint policy, as outlined in
16    Section 35, which alleges violations of the Condominium
17    Property Act or the Common Interest Community Association
18    Act;
19        (4) have received a final and adverse decision from the
20    association and attach a copy of the association's final
21    adverse decision marked "final" to the request to the
22    Ombudsperson; and
23        (5) have filed the request within 30 days after the
24    receipt of the association's final adverse decision.
25    (e) A unit owner who has not received a response, marked
26"final", to his or her complaint from the association within a

 

 

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1reasonable time may request assistance from the Ombudsperson
2pursuant to subsection (a) of this Section if the unit owner
3meets the requirements of items (1), (2), and (3) of subsection
4(d) of this Section. A unit owner may not request assistance
5from the Ombudsperson until at least 90 days after the initial
6written complaint was submitted to the association. The
7Ombudsperson may decline a unit owner's request for assistance
8on the basis that a reasonable time has not yet passed.
9    (f) The request for assistance shall be in writing, on
10forms provided by the Office, and include the following:
11        (1) the name, address, and contact information of the
12    unit owner;
13        (2) the name, address, and contact information of the
14    association;
15        (3) the applicable association governing documents
16    unless the absence of governing documents is central to the
17    dispute;
18        (4) the date of the final adverse decision by the
19    association;
20        (5) a copy of the association's written complaint
21    policy required under Section 35 of this Act;
22        (6) a copy of the unit owner's complaint to the
23    association with a specific reference to the alleged
24    violations of the Condominium Property Act or the Common
25    Interest Community Association Act;
26        (7) documentation verifying the unit owner's ownership

 

 

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1    of a unit, such as a copy of a recorded deed or other
2    document conferring title; and
3        (8) a copy of the association's adverse decision marked
4    "final", if applicable.
5    (g) On receipt of a unit owner's request for assistance
6that the Department determines meets the requirements of this
7Section, the Ombudsperson shall, within the limits of the
8available resources, confer with the interested parties and
9assist in efforts to resolve the dispute by mutual agreement of
10the parties.
11    (h) The Ombudsperson shall assist only opposing parties who
12mutually agree to participate in dispute resolution.
13    (i) A unit owner is limited to one request for assistance
14per dispute. The meaning of dispute is to be broadly
15interpreted by the Department.
16    (j) The Department has the authority to determine whether
17or not a final decision is adverse under paragraph (4) of
18subsection (d) of this Section.
19    (k) The Department shall establish rules describing the
20time limit, method, and manner for dispute resolution.
21    (l) A request under the Freedom of Information Act for
22information does not constitute a request for assistance under
23this Section.
 
24    Section 45. Confidentiality. All information collected by
25the Department in the course of addressing a request for

 

 

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1assistance pursuant to Section 40 shall be maintained for the
2confidential use of the Department and shall not be disclosed.
3The Department shall not disclose the information to anyone
4other than law enforcement officials or regulatory agencies
5that have an appropriate regulatory interest as determined by
6the Secretary. Information and documents disclosed to a
7federal, State, county, or local law enforcement agency shall
8not be disclosed by that agency for any purpose to any other
9agency or person.
 
10    Section 50. Reports.
11    (a) The Department shall submit an annual written report on
12the activities of the Office to the General Assembly, no later
13than October 1 of each year, with the initial report being due
14October 1, 2020. The report shall include all of the following:
15        (1) annual workload and performance data, including
16    the number of requests for assistance received, the manner
17    in which requests were or were not resolved and the staff
18    time required to resolve the requests. For each category of
19    data, the report shall provide subtotals based on the type
20    of question or dispute involved in the request; and
21        (2) analysis of the most common and serious types of
22    disputes within condominiums and common interest
23    communities, along with any recommendations for statutory
24    reform to reduce the frequency or severity of those
25    disputes.
 

 

 

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1    Section 55. Registration.
2    (a) Except as otherwise provided in subsections (d) and (f)
3of this Section, every association shall register with the
4Department in a form and manner specified by the Department. A
5registration shall be valid for 2 years. The initial
6registration for an association existing on the effective date
7of this Act is due 180 days after the effective date of this
8Act.
9    (b) Newly created associations required to register with
10the Department must register no later than 90 days after the
11association has assumed control of a property.
12    (c) The Department may issue a certification of
13registration under this Act to any association that applies to
14the Department on forms provided by the Department and provides
15the following:
16        (1) the business name of the association seeking
17    registration;
18        (2) the business address or addresses and contact
19    information of the association seeking registration;
20        (3) the name, address, and contact information for the
21    association's authorized agent or management company and
22    management company representative;
23        (4) a certification that the applicant has a written
24    policy for resolving complaints as required by Section 35
25    of this Act;

 

 

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1        (5) the initial date of recording of the declaration;
2        (6) the recording number or book and page for the
3    document that constitutes the declaration; and
4        (7) a certification that the association will comply
5    with all other requirements of this Act and rules
6    established for the implementation of this Act.
7    (d) This Section does not apply to a unit, or the owner
8thereof, if the unit is a timeshare property subject to the
9Real Estate Timeshare Act of 1999.
10    (e) If any of the information submitted under subsection
11(c) of this Section changes, the association shall provide
12updated information to the Department no later than 60 days
13after the change.
14    (f) A common interest community association is exempt from
15registration if it is exempt from the Common Interest Community
16Association Act.
17    (g) An association that fails to properly register or whose
18registration has expired or who fails to timely establish a
19written policy for resolving complaints, as described in
20Section 35, is ineligible to impose or enforce a lien for
21assessments or to pursue any action or employ any enforcement
22mechanism otherwise available to it until it is validly
23registered pursuant to this Section. A lien for assessments
24previously filed during a period in which the association was
25registered pursuant to this Section shall not be extinguished
26by a lapse in the association's registration, but any pending

 

 

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1enforcement proceedings related to the lien shall be suspended
2and any applicable time limits tolled until the association is
3again validly registered pursuant to this Section.
 
4    Section 60. Rules. The Department may adopt rules for the
5administration and enforcement of this Act. Any rule adopted
6under this Act is subject to the rulemaking provisions of the
7Illinois Administrative Procedure Act.
 
8    Section 65. State Lawsuit Immunity Act. Nothing in this Act
9shall be construed to constitute a waiver of the immunity of
10the State, Department, Division, Office, or Ombudsperson, or
11any officer, employee, or agent thereof under the State Lawsuit
12Immunity Act.
 
13    Section 70. Repeal. This Act is repealed on July 1, 2021
 
14    Section 75. The Condominium Property Act is amended by
15adding Section 35 as follows:
 
16    (765 ILCS 605/35 new)
17    Sec. 35. Compliance with the Condominium and Common
18Interest Community Ombudsperson Act. Every unit owners'
19association must comply with the Condominium and Common
20Interest Community Ombudsperson Act and is subject to all
21provisions of the Condominium and Common Interest Community

 

 

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1Ombudsperson Act. This Section is repealed July 1, 2021.
 
2    Section 80. The Common Interest Community Association Act
3is amended by adding Section 1-90 as follows:
 
4    (765 ILCS 160/1-90 new)
5    Sec. 1-90. Compliance with the Condominium and Common
6Interest Community Ombudsperson Act. Every common interest
7community association, except for those exempt from this Act
8under Section 1-75, must comply with the Condominium and
9Community Interest Community Ombudsperson Act and is subject to
10all provisions of the Condominium and Community Interest
11Community Ombudsperson Act. This Section is repealed July 1,
122021.
 
13    Section 999. Effective date. This Act takes effect July 1,
142016.".