The Letter Nobody Wants
A letter arrives from the board or the management company: the association has approved a special assessment, your share is $12,000, and the first installment is due next month. Maybe it is for facade repairs, maybe a new roof, maybe a project you have never heard discussed at any meeting.
Illinois law does not let a condo board simply decree a special assessment however it likes. The Illinois Condominium Property Act (765 ILCS 605) imposes notice requirements, gives owners a veto right over large increases, and requires an actual owner vote for certain kinds of projects. But the deadlines for using these tools are short, some as short as 21 days, so the worst thing you can do is set the letter aside.
Every situation is different and this article is not legal advice. One terminology note before we start: the Act calls these "separate assessments," while everyone else calls them special assessments. Same thing. And as with all of our condo articles, this one covers condominiums governed by the Condominium Property Act. Townhome and single-family communities are usually governed by a different statute, the Common Interest Community Association Act (765 ILCS 160), and the details differ.
Step One: Check the Process the Board Followed
Start with how the assessment was adopted, because procedural defects are the most common and often the most fixable problem.
Under Section 18 of the Act, unit owners are entitled to notice of any board meeting at which the board will adopt the annual budget, a regular assessment, or a separate assessment. That notice must be given the same way as notice of a membership meeting, which means written notice delivered no less than 10 and no more than 30 days before the meeting. For the annual budget, owners must also receive a copy of the proposed budget at least 25 days before the board adopts it.
If the board adopted your special assessment at a meeting the owners never got proper notice of, that is not a technicality. Adoption in violation of the Act's process is a genuine basis to challenge the assessment.
Ask yourself:
- Did you receive written notice of the meeting where the assessment was adopted?
- Did the notice arrive in the 10-to-30-day window?
- Was the assessment actually voted on at a board meeting, or did it just appear in a letter?
Step Two: The 115% Rule, the Owners' Veto
This is the most powerful tool most owners have never heard of.
Under Section 18(a)(8) of the Act, if the board adopts a budget or any separate assessment that would push the total of all regular and separate assessments payable in the current fiscal year above 115% of the total payable in the prior fiscal year, the owners can force a vote on it.
Here is how it works in plain terms:
- Do the math. Add up all regular and separate assessments payable this fiscal year, including the new special assessment. Compare that to the total payable last fiscal year. If this year's total exceeds last year's by more than 15%, the veto right is triggered.
- Gather signatures fast. Unit owners holding at least 20% of the votes in the association must deliver a written petition to the board within 21 days of the board's action.
- The board must call a meeting. Once a valid petition is delivered, the board must call a meeting of the unit owners within 30 days.
- The owners vote. At that meeting, if a majority of the total votes of all unit owners is cast to reject the assessment, it is rejected. Otherwise it is ratified.
Two important warnings. First, the 21-day petition deadline is unforgiving, and organizing 20% of your neighbors takes time, so start immediately. Second, the rejection vote requires a majority of all votes in the association, not just a majority of those who show up. Apathy favors the board. A serious challenge means door-knocking, proxies, and organization.
There is also an exception: separate assessments for expenditures relating to emergencies or mandated by law can be adopted by the board without being subject to owner approval. Boards know this, and "emergency" sometimes gets stretched to cover projects that are really deferred maintenance or discretionary upgrades. Whether something is truly an emergency under the Act is a question worth pressing.
Step Three: Is This a Repair, or an Addition?
The Act draws a line that matters enormously here. Assessments for additions and alterations to the common elements, or to association-owned property, that are not included in the adopted annual budget must be separately assessed and require approval of two-thirds of the total votes of all unit owners.
In practice:
- Repairing or replacing what exists (a failing roof, crumbling masonry, a dead boiler) is generally within the board's authority, subject to the notice rules and the 115% petition right described above.
- Adding something new or materially altering the property (a gym where there was none, a rooftop deck, converting common space to a new use) that was not in the annual budget requires a two-thirds owner vote before it can be specially assessed.
If your board is specially assessing owners for a project that is really an addition or alteration and no owner vote was taken, the assessment is on shaky ground. Boards sometimes label upgrade projects as "repairs" precisely to avoid this vote. The project documents, bids, and board minutes usually tell the real story.
Step Four: Get the Records
You have a statutory right to see the paper trail. Under Section 19 of the Act, a written request stating with particularity the records you want obligates the board to make them available within 10 business days. Silence counts as a denial, and an owner who has to sue to get most categories of records can recover attorney fees.
For a special assessment challenge, request at minimum:
- Board meeting minutes for the period when the project and assessment were discussed and adopted
- The notices sent to owners for those meetings
- The contracts, bids, and proposals for the project
- The current budget, the prior year's budget, and the assessment schedules for both years (you need these for the 115% math)
- Any reserve study, and the reserve account balances
The records often reveal the strongest arguments: a no-bid contract with a board member's affiliate, a project scope that quietly grew, or minutes showing the "emergency" was discussed casually for eight months.
Step Five: Object in Writing, Then Escalate Deliberately
Put your objections in a letter to the board: the procedural defects, the 115% math, the missing owner vote, the records that were withheld. A specific, statute-based objection changes how boards and their counsel behave, because it shows them the litigation risk.
From there, the escalation path runs from negotiation, to mediation, to court. Owners can seek a declaratory judgment that an assessment was invalidly adopted, an injunction against its collection, and in appropriate cases damages for breach of fiduciary duty. Board members owe fiduciary duties to the owners, and a special assessment tainted by self-dealing, such as steering the project contract to an insider, raises claims against the individuals as well as the association. We cover those broader claims in Do You Have a Claim Against Your HOA?
One Thing You Should Not Do: Just Stop Paying
Withholding the assessment while you fight feels natural. It is also the single most dangerous move available to you. Unpaid assessments become a lien on your unit, with interest, late charges, and the association's attorney fees stacked on top, and the association can pursue eviction or foreclosure while your objections wait in line. The Illinois Supreme Court has made clear that grievances against the board generally must be pursued as separate claims, not by withholding payment. We explain exactly how bad this can get in Can My HOA Foreclose on My Condo in Illinois?
Pay if you can, note that you are paying under protest, and fight the assessment through the channels that actually work.
Talk to Us Before the Deadlines Run
The 21-day petition window and the 10-and-30-day meeting rules mean that a special assessment challenge is won or lost early. Our office represents unit owners, not boards, in HOA and condo disputes across Chicago and the collar counties. Contact The Law Office of Krista Krepp at contact@krepplaw.com or schedule a consultation online.
Frequently Asked Questions
Can an Illinois condo board impose a special assessment without a vote of the owners? Often, yes. Boards can generally adopt special assessments for repairs and maintenance at a properly noticed board meeting without owner approval. Owner votes are required in two main situations: when a petition triggers the 115% rule, and when the assessment funds additions or alterations not in the annual budget, which require a two-thirds vote of all owners.
How is the 115% threshold calculated? Compare the sum of all regular and separate assessments payable in the current fiscal year, including the new assessment, to the sum of all regular and separate assessments payable in the preceding fiscal year. If the current-year total exceeds 115% of the prior-year total, owners holding 20% of the votes can petition within 21 days of the board's action to force an owner vote.
How many owners do I need to challenge a special assessment? To trigger the vote under the 115% rule, you need a written petition from owners holding at least 20% of the association's votes, delivered within 21 days. To actually reject the assessment at the resulting meeting, a majority of the total votes of all unit owners must be cast against it.
What if the board says the special assessment is for an emergency? Separate assessments for emergencies or legally mandated expenditures are exempt from the owner-approval process. But calling something an emergency does not make it one. Long-deferred maintenance the board sat on for years, or a discretionary upgrade bundled into urgent work, can be challenged. The board's own minutes and project records are usually the best evidence.
Can I sue the board members personally over an improper assessment? In appropriate cases, yes. Board members owe fiduciary duties to unit owners. Where an assessment involves self-dealing, conflicted contracts, or bad-faith conduct rather than an honest judgment call, claims against individual directors may be available in addition to claims against the association.
Do I have to keep paying an assessment I am challenging? As a practical matter, yes, unless and until it is invalidated. Unpaid assessments become a lien and expose you to eviction or foreclosure, and the courts will not accept your challenge as a defense to nonpayment. Pay under protest and pursue the challenge separately.