“Help! Our board of directors does not follow the bylaws.”
Oh, how many times have I heard this during the course of representing condominium and community associations over the past two decades. Implicit in this statement is an erroneous assumption that the bylaws represent the total sum of all governing authority in a community association. Instead, there is a hierarchy of authority in place which influences how boards of directors make their decisions.
The top tier of authority for condominiums and common interest community associations include federal law followed by the Illinois General Not For Profit Corporation Act, the Illinois Condominium Property Act and the Illinois Common Interest Community Association Act. Next stop down the hierarchical ladder includes case law which has been decided by the Illinois Supreme and Appellate Courts. Lower on the ladder are the declaration and bylaws specific to the association. The last rung includes any rules and regulations adopted by the board.
Back to the original complaint, it just might be true that the board of directors is not following what the governing documents mandate. But it may be equally true that Congress or the Illinois Legislature has adopted a public policy, via statute, that effectively modifies an inconsistent term in an association’s governing documents. Similarly, a judge construing that statute may render a decision that also nullifies or modifies a provision in an association’s governing documents. In other words, a higher authority trumps authority appearing on the lower rungs of the ladder.
Thus, if your board deviates from the terms of its governing documents in the future, be aware that there may be lawful higher authority which compels it to act in that fashion.
