Are Condo Balconies Private Property?

If you've ever thought about owning a condominium, you likely have many questions and concerns about how that actually works. There are several distinguishing factors which make condominium living unique, and depending on your point of view, there are many potential benefits as well as downsides.  

A condominium building or complex will have some internal rules and external regulations that govern how they are run and what distinguishes between private and public property. In a condominium set-up, there are several units within a larger development, and these separate units are each privately owned by an individual owner. This is different from apartments, in which each unit is rented rather than owned. 

Key Takeaways

• Condominiums are unique as they involve privately owned units within a larger complex, governed by both internal rules and state regulations.
• Common areas, including limited common elements like balconies and terraces, are shared spaces subject to condo association (COA) rules and the Illinois Condominium Property Act.
• COA bylaws are legally binding on owners, and these rules can include restrictions on activities like smoking in common areas to prevent interference with other residents.

Common Areas 

With a condo, there will always be some common areas, such as hallways, stairwells and parking lots, and sometimes more amenities such as gyms and pools. Other things like terraces and even balconies may also be considered common property, even if they are only used by individual owners, because they are not technically considered to be within the confines of the units.  

This is especially true if a condo balcony is connected to a stairwell. Even if you have exclusive control over your balcony as a condominium owner, if other people are passing through a stairwell that abuts your balcony, it is part of the common area.  

Illinois Condominium Property Act 

The regulations surrounding condominiums can be found in the Illinois Condominium Property Act. The Illinois Condominium Act refers to common areas as "common elements" and defines them as "all portions of the property except the units, including limited common elements unless otherwise specified."  

It further defines "limited common elements" to mean "a portion of the common elements so designated in the declaration as being reserved for the use of a certain unit or units to the exclusion of other units, including but not limited to balconies, terraces, patios and parking spaces or facilities." These are still common elements but with a limited common scope.  

The "declaration" that the Act is referring to is "the instrument by which the property is submitted to the provisions of this Act," so basically, it is the condo's establishing document. It describes things like the legal description of the parcel on which the condo complex sits, the legal descriptions of the units, a description of the common and limited common elements, the percentage of ownership interest in the common elements allocated to each unit, and so forth. 

Condo Association Bylaws  

The way that common areas are treated versus private units will depend on the condominium owners' association, also known as a COA, which oversees your condominium complex. Though a COA is still beholden to local and state regulatory requirements, it will also have its own governing body, a declaration, written rules known as bylaws, and processes in place for the management of the complex.  

Condo association bylaws are tailored to their specific communities. The condo bylaws lay out the way the COA functions and what is permitted and prohibited. 

Condo Association Bylaws versus Rules and Regulations 

When a situation arises in which a condo association's bylaws are in conflict with the local or state rules and regulations, the local and state rules and regulations will take priority and will override the COA's bylaws. But typically the condo bylaws are more stringent and specific, while local rules and regulations have a broader scope, such as surrounding zoning and land use. 

Are Condo Bylaws Legally Binding? 

However, COAs are permitted to establish such rules as they deem necessary, and as long as they are not against the law or public policy, they will be legally binding on their members. Think of it as this: condo owners enter into a contract with their COA, and this contract is legally binding on both parties. The condo owners agree to abide by the COA declarations and bylaws, and the COA provides certain services to the condo owners in return. In fact, some responsibilities are established by the Condominium Property Act as requirements.  

Whether or not it is Legal to Smoke on a Condo Balcony 

COA's are permitted to include in their bylaws a prohibition on smoking in common areas, including in limited common elements such as on unit balconies. According to the Condominium Property Act, COAs can establish restrictions on and requirements relating to the use and maintenance of the units and the common and limited elements, and these can be designed to prevent unreasonable interference with their use by all the individual owners.  

For example, if one unit owner is smoking on their balcony, this may unreasonably interfere with the use of another unit's balcony by its respective owner because that second owner may have difficulty breathing around cigarette smoke and won't be able to be outside while the first owner is out there smoking and wafting their cigarette smoke onto other balconies. 

In Conclusion 

Condo owners may freely use their balconies and decorate them as long as they are doing so in line with their COA rules. They have exclusive control over them and may have exclusive access to them as well. However, they are technically not usually considered private property for the purposes of the COA's bylaws. They are instead considered common or limited common areas, and the owners of the units that have balconies have to abide by and respect the rules by which they are bound via their condo association membership.