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Q. Several years ago, our association amended its
declaration to change balconies and patios into common
elements from limited common elements. The board of
directors wanted to have control over repairs.

We have a request from an owner to enlarge the size of his
patio at his own expense. Most of the board seems to be in
favor of allowing this because it has been done a couple of
times in the past. Is it legal for an owner to take property
that belongs to all of the homeowners for his exclusive use.

A. A unit owner may not take a portion of the common
elements without the unanimous consent of the ownership.

In a similar case, the Illinois Appellate Court held in the
1994 decision Carney v. Donley that a unit owner cannot
extend a balcony over a portion of the common elements
without the unanimous consent of the ownership. The
rationale was that this addition would reduce part of the
common elements that is owned by all of the owners
collectively, and thus, diminish their percentage of
ownership.

Publication date: Jun 27, 2010

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Q: I reside in a high-rise condominium complex?. Our
condominium association's declaration and bylaws are over 30
years old and there is a $5,000 spending limit in the bylaws
unless a majority of unit owners approve the expenditure.
Are there any exceptions to this provision? Our property
manager says Illinois law overrides spending limits in a
condominium declaration.

A: Spending limits contained in a condominium declaration
and bylaws are valid. However, Section 18.4(a) of the
Condominium Act does contain an exception which expressly
states that such spending limits "shall not be applicable to
expenditures for repair, replacement, or restoration of
existing portions of the common elements."

Thus, spending limits are valid relating to expenditures for
something that does not currently exist as part of the
common elements. However, the spending limit does not apply
to maintenance, repair and replacement of existing common
elements.

Q: I am a unit owner in a condominium association. A unit in
my hallway installed a video recording doorbell on her door.
I discussed my concerns with the property manager and it was
acknowledged that unit owners cannot install video recording
doorbells on the doors or door frames without board
approval. However, the board has not yet enforced the
removal of the video recording doorbell. What can I do?

A: Condominium declarations state that unit owners cannot
modify limited common elements without board approval. Doors
and door frames are considered a limited common element.
Most boards in a condominium association will not allow
video recording doorbells to be installed for aesthetic
reasons, but the board can deny such requests based upon the
objections other unit owners have to being recorded in their
hallways. The board should take remedial action to have the
video recording doorbell removed if it was installed without
board permission.

As far as individual owner recourse, objecting owners should
submit written complaints to the management company/board
for violation of the association's governing documents and
demand the board take remedial action. A board that refuses
to enforce its governing documents may be subject to breach
of fiduciary duty claims by the objecting owners.

Q: The board of directors in my Chicago condominium
association recently approved retaining a real estate agent
to market our property to procure purchase offers to sell
the condominium building. I question the legality of this
board action because the board has not yet obtained 85% unit
approval to sell the building. Am I correct the board action
is improper without 85% approval?

A: While 85% unit owner approval is required for a valid
purchase agreement to sell all the units and common elements
in a Chicago condominium association per Section 15 of the
Condominium Act, as supplemented by the Chicago Condominium
Ordinance there is nothing in the law that prevents a
condominium board from retaining a real estate agent to
obtain purchase offers, or other due diligence related to a
possible bulk sale.

In fact, a board has to do basic due diligence to present
details to the unit owners for unit owners to make an
informed decision on whether a bulk purchase offer is
acceptable to them. Similarly, condominium boards may, but
are not required to, retain an appraiser to appraise the
building to know whether purchase offers received are market
price.

Please note that while the city of Chicago requires 85% unit
owner approval for a bulk sale of a condominium association,
the rest of the state of Illinois is governed solely by
Section 15 of the Condominium Act, which only requires 75%
unit owner approval (unless a local municipality where the
property is located increased the owner approval threshold).

Publication date: Sep 18, 2022

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Q: I live in a small condominium association and assessment
increases are calculated by unit percentage of the annual
budget. We have one of the larger units in the association
and already pay one of the highest assessments. Is it
possible for a condominium board to increase assessments a
flat amount per month (i.e., $100) for all unit owners or
adopt a special assessment in a flat amount where everyone
pays the same (i.e., $1,200)? Why should percentage of
ownership be used when we all benefit from the same roof,
for example?

A: The condominium regime is governed by a recorded
declaration and bylaws as well as the Condominium Act. A
fundamental aspect of finances in a condominium regime is
that units are responsible for their pro rata share of
everything, including the budget and special assessments,
which means that units must pay their unit percentage share
of the budget and special assessments. Simply stated, that
is the law.

There is an exception for user charges in most condominium
declarations that allow a condominium board to assess a user
charge equally to each unit, such as a rental fee for a
party room or bulk internet or basic cable cost; otherwise,
unit percentage is the appropriate method to calculate
assessments increases.

Q: I am a unit owner in a condominium association and
recently requested to inspect two documents: a copy of the
approved minutes of a recent board meeting and the sign-in
sheet of that same board meeting. I was told there would be
a $20 charge to fill each request that will be put on my
assessment invoice. Is the board allowed to charge for those
items?

A: Document requests by unit owners are governed by section
19 of the Condominium Act. Per section 19(a)(4), unit owners
are entitled to inspect, and get a copy of, minutes of all
meetings of the association and the board of directors for
the immediately preceding seven years; however, unit owners
are not entitled to a copy of sign-in sheets to board
meetings as that is not an enumerated document per section
19 to which unit owners are entitled.

As far as the charges to procure document requests, section
19(f) of the Condominium Act states that the actual cost to
the association of retrieving and making the requested
records available for inspection and examination may be
charged by the association to the requesting member.
Additionally, the requesting member may be charged the
actual cost to the association of reproducing the records.
If $20 reflects the actual cost of retrieving and copying
the records, it may be assessed to the requesting owner.

Customarily, most associations do not charge unit owners to
produce a copy of the board meeting minutes and, in fact,
many associations post approved board meeting minutes on
secure association or management company websites.

Q: I live in a 100-plus unit town home association and our
annual budget is more than $100,000 annually. Please comment
on what is the applicable statute that governs our
association and what authority would govern whether the
owner or the association is responsible for maintaining,
repairing and replacing landscaping on town home lots.

A: Unless a town home association was expressly submitted to
the terms of the Condominium Act through its declaration,
town home associations are not condominium associations, but
are considered common interest community associations. The
Common Interest Community Association Act applies to all
common interest communities unless the association is
exempt. A common interest community association organized
under the Illinois not-for-profit act that has less than 10
units or an annual budget of $100,000 or less is exempt from
CICAA. However, a 100-plus unit town home association with
an annual budget of more than $100,000 is subject to CICAA.

The obligation for maintenance, repair and replacement of
landscaping in a common interest community is governed by
the declaration and bylaws, not CICAA.

Publication date: Oct 9, 2022

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Q. I am a unit owner in a Chicago condominium association
and intend to request permission from the condominium board
to install an electric vehicle charger in front of my
parking unit when I purchase an electric vehicle. Can you
advise if there are any applicable City of Chicago statutes
that provide me a right to install an electric charger?

A. On July 20, 2022, a new Chicago ordinance called the
"Electric Vehicle Right to Charge Ordinance" was proposed to
the Chicago City Council Committee on Housing and Real
Estate. The proposed ordinance grants unit owners (and
tenants) the right to tie into a community association's
garage common electrical system to install an electric
vehicle charging station to serve their "exclusive" parking
space so long as certain conditions are met. This ordinance
is only proposed at this time and has not yet been adopted.

The proposed ordinance, if adopted in its present form,
contains the following general concepts in the legislation
regarding the installation of electric vehicle charging
stations by unit owners or tenants: the board is entitled to
impose reasonable restrictions; the board must follow an
approval process; the board may impose conditions on
approval such as execution of a written agreement with
certain terms and conditions; and the board may require
insurance.

Q. I am on a condominium board, and my fellow board members
are hesitant to commission a reserve study for fear of
learning the true condition of the building, which may
require repairs in the immediate or near term. Is this an
unwise course of action?

A. Pursuant to section 9(c)(2) of the Condominium Act, all
budgets adopted by a condominium board shall provide for
reasonable reserves for capital expenditures relating to the
maintenance, repair or replacement of the common elements.

While not mandated by law, the most common, and recommended
practice, for reserve fund planning is to commission an
independent professional reserve study so the board
understands the remaining useful life of common element
components so it can budget appropriately for the reserve
fund. In fact, section 9(c)(2) expressly states a reserve
study is a factor for the board to consider when budgeting
for the reserve fund.

In the absence of a reserve study, the board will not have
sufficient information for long-term planning and risks
surprise failure of a common element component, which may
result in unexpected and costly repairs. Plus, the
association may have insufficient funds to pay for such
repairs necessitating the need for a special assessment or
bank loan on an emergency basis. It is always recommended to
plan ahead, and a reserve study is the most effective tool
to do so.

Q. I am a unit owner in a small condominium association, and
board meetings are held in board members' units. Throughout
the pandemic, the board members have been meeting in-person,
maskless, which makes me uncomfortable. I've asked the board
to allow me to call into the board meeting via speaker
phone, but the board has refused. Is the board legally
allowed to refuse my request?

A. Section 18(a)(9) of the Condominium Act requires
condominium boards to hold open meetings for unit owners to
attend and observe when discussing association business.
However, if a condominium board holds an in-person meeting,
it is not required to provide telephone or video conference
ability for unit owners to observe the meeting without being
physically present.

Even though a board cannot be forced to allow telephone or
video conference capability for unit owners to call into a
board meeting, it is common to do so. In fact, since the
COVID pandemic started, most condominium associations are
holding board meetings using telephone or video conference
technologies, which has been universally welcomed by board
members and unit owners alike for the convenience of
attending a board meeting in the comfort of their own home.

Publication date: Nov 13, 2022

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Q: I am on the board of directors of a small, self-managed
condominium association. Now that the holiday season is upon
us, the board has noticed several unit owners have hung
lights surrounding their balcony railings. Does the board
have the right to order the removal of lights hanging off
balcony railings for uniformity of the appearance of
balconies?

A: Yes, the board has the authority to order the removal of
lights hanging off balcony railings and can levy fines or
take legal action if the unit owner fails and/or refuses to
comply. Per all condominium declarations, and the
Condominium Act, the board administers the common elements.
Balcony railings are deemed to be a limited common element,
which is a portion of the common elements exclusively
reserved for one or more units. Condominium declarations
also expressly state that a unit owner may not modify or
alter the common elements or limited common elements without
board approval.

Q: I am on the board of a condominium association where a
unit owner has been exhibiting erratic and unstable behavior
that is concerning to many unit owners and the board of
directors. What are the board's options to address this type
of situation?

A: The board is tasked with enforcing the association's
governing documents. The use and occupancy section of
condominium declarations and bylaws include a prohibition of
noxious or offensive activities, and sometimes nuisances.

In the event of any noxious or offensive incident, or
nuisance, if applicable, upon a written complaint or
incident report submitted to the board or management
describing the conduct, the board can do the following: send
a warning letter, if warranted; issue a formal violation
notice, and after giving the unit owner an opportunity for a
hearing, levy a reasonable fine; and/or seek judicial
intervention such as a declaratory lawsuit to obtain a court
order to stop the conduct. Declaratory lawsuits are used
only when the gravity of the situation requires such action
and if violation notices and fines have been ineffective to
abate the behavior.

Q: I am a unit owner in a condominium association and have
watched a particular board member take it upon themselves to
enforce the association's governing documents. What
authority do individual board members have to enforce the
governing documents?

A: Individual board members do not have enforcement powers
or decision-making authority unless such authority was
expressly delegated by the entire board of directors to the
individual board member at a meeting with a quorum. The
board of directors as a whole is tasked with administering
the association and enforcing the governing documents,
including issuing notice of a violation and/or levying fines
for a violation of the governing documents.

Publication date: Dec 11, 2022

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Q. I live in a condominium association that has union door
staff, engineers and janitorial employees. Some unit owners
are requesting the board institute a mandatory vaccination
policy for all our union employees; however, it is our
understanding the union has been pushing back on mandatory
vaccinations based on the collective bargaining agreement
between buildings (negotiated through the ABOMA
organization) and the union. Can a condominium board impose
a mandatory vaccination policy for its union employees?

A. On Sept. 27, 2021, ABOMA and the SEIU Local 1 entered
into two memorandums of understanding related to mandatory
vaccination policies for certain union employees. The
memorandums allow employers, including condominium
associations, to mandate that certain union employees obtain
a COVID-19 vaccine as a condition of employment provided
that certain factors are met as described in the memorandums
and no exemptions apply. ABOMA is requesting condominium
associations approve the authorization of the memorandums of
understanding by Oct. 12, 2021.

The memorandums apply to the following SEIU Local 1 union
employees who commonly work in condominium associations:
door attendant, receiving room employees, chief engineers
and other janitorial and maintenance employees. Members of
Teamsters local 727 parking garage labor agreement are not
included in the memorandums of understanding.

Q. I am an original unit owner in a condominium building
constructed approximately 20 years ago. In the last eight
years, I have had four ceiling leaks that have not been
resolved sufficiently. Despite studies and water testing,
association contractors have not found the source of the
water infiltration. What is the obligation of the board of
directors to get these water leaks resolved?

A. Pursuant to Section 18.4(a) of the Condominium Act, and
applicable case law, the board of directors of every
condominium association has a fiduciary obligation to
maintain, repair and replace the common elements. This
requires the boards to prevent water infiltration from
entering interior common elements and units.

If a condominium board is engaging professionals to attempt
to determine the cause of the water infiltration, that is a
reasonable course of action and may be a defense to a breach
of a fiduciary duty claim against the board of directors.
However, the board must continue to engage experts in a
reasonable period of time until the cause of the water
infiltration is identified, and abated. Failure to do so
will eventually subject the association to a lawsuit and
possibly the board of directors to a breach of fiduciary
duty claim.

Q. I live in a townhouse community association that is
governed by the Common Interest Community Association Act
(CICAA). I made a request to review and make copies of
certain financial records. The managing agent responded to
my request that I may inspect the records at the management
office and that I am responsible for the cost of retrieving
and photocopying the records. Is the managing agent correct?

A. In a community association governed by CICAA, section
1-30(i) clearly delineates certain records that an owner in
a community association subject to CICAA may request for
inspection and photocopying. The location of the inspection
may be required to occur where the records are kept, which
could include the management office, and per the same
section, a reasonable fee may be charged by the
board/managing agent for the cost of retrieving and copying
any records properly requested.

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realestate@chicagotribune.com .

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Publication date: Oct 6, 2021

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Q: I am a unit owner in a condominium association and have a
question regarding board member criteria for competency. Our
association membership unwittingly elected board members
that are indifferent to resident concerns, have significant
language barriers, and frankly, have questionable
intelligence. Are there any criteria for experience or
competency to serve on a condominium board?

A: Pursuant to Section 18(a)(1) of the Condominium Act, the
only legal criteria for serving on a condominium board is to
be a unit owner of a unit in the condominium association.
There is no other legal criteria for serving on a
condominium board in the Condominium Act

Nonetheless, directors have fiduciary obligations to the
unit owners of the association under Illinois law. This
requires condominium directors to act reasonably, act in the
best interest of the association, and follow the terms of
the condominium declaration and bylaws, which includes
maintaining, repairing and replacing the common elements.
Board members that breach their fiduciary duties may be
subject to individual liability.

Therefore, board members who do not have any experience or
knowledge about the role of directors serving on a
condominium board should seek out the advice of
professionals, and additionally, would benefit from reading
resource materials regarding best practices of operating a
condominium association.

Q: I live in a suburban condominium association where our
condominium board terminated our management company for
cause and hired a new management company this past year.
After the termination, the board of directors issued a
notice to all unit owners to pay unit assessments to the new
management company. However, the original management company
has rejected the termination notice and instructed unit
owners to continue paying their assessments to them and
threatened to file liens against units that do not comply.
Who are we obligated to pay our monthly assessments?

A: Management companies are agents of the association. If
there is a dispute between the board of directors and a
management company, unit owners should follow the direction
of the board of directors because it is the board that is
granted legal authority under the condominium declaration
and bylaws to collect assessments and enforce remedies
against unit owners for nonpayment of assessments, not the
management company.

If the termination of the management company was improper as
the management company believes, depending on the actual
facts, the management company may have a breach of contract
claim against the association for damages; however, the
management company does not have the authority to dictate
where unit owners pay their assessments, file assessment
liens against units without board approval and/or handle
association funds after the effective date of the notice of
termination.

Q: I am an owner in a small, 10-unit townhouse community
association. Our board of directors raised the assessments
$200 a month to $300 a month, which is a 50% increase. Is
the board authorized to increase our budget so much?

A: The authority of a townhouse board to adopt budgets to
meet expenses is outlined in the townhouse declaration and
bylaws, and if applicable, the Common Interest Community
Association Act (CICAA). The CICAA statute applies to
residential community associations except for community
associations with 10 units or less or an association with an
annual budget of $100,000 or less, in which case those
associations are exempt from CICAA.

If CICAA does apply and the newly adopted budget is more
than 115% of the sum of the previous year’s regular and
special assessments, per Section 1-45 of CICAA, 20% of the
owners can file a petition within 14 days of the adopted
budget for an owner meeting to be held within 30 days, and
if the budget is rejected by a majority of the total votes
of the members at the owner meeting, the budget will be
rejected. If not, the budget is deemed ratified.

It should be noted in the last several years, due to
inflation, the cost of labor and materials, utilities and
vendor contracts have increased significantly for most
community and condominium associations. Thus, most
associations have experienced budget increases to meet
expenses. An association having insufficient funds to pay
for insurance policies for the common areas, utilities,
maintenance contracts for services for the owners, or staff
salaries is not a tenable situation, so owners needing to
reconcile budget increases to meet reasonable expenses has
become a reality of homeownership.

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Publication date: Jan 15, 2023

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Q: I live in a high-rise condo? and recently heard a rumor
about an update to a statute regarding smoke detectors that
apparently affects condo?s. What is the law regarding smoke
detectors in condo?s?

A: In August 2017, the Illinois Smoke Detector Act was
amended to include additional requirements for smoke
detectors in residences, and these new requirements took
effect on Jan. 1, 2023. In general, the Illinois Smoke
Detector Act phases out older-model smoke detectors with
removable short-term batteries that need more frequent
battery replacement and requires that such older-model smoke
detectors be replaced with smoke detectors that are
hardwired or have a nonremovable 10-year battery.

The Illinois Smoke Detector Act applies to all Illinois
residences, including condominium buildings, except those
located in municipalities of more than 1 million
inhabitants, such as Chicago. However, a Chicago ordinance
adopted in 2021 aligns with the new smoke detector battery
mandate phasing out older model smoke detectors and requires
that new or replacement smoke detectors in Chicago condos be
hardwired or powered by sealed batteries. Under the Chicago
ordinance, any new or replacement smoke detectors in Chicago
condos must be hardwired or powered by sealed batteries.

Q: I am a board member in a self-managed Chicago condominium
association. The ?board is aware that last year the ?city of
Chicago proposed an electric vehicle charging ordinance that
would affect our association because we have unit owners
with electric vehicles. Was the proposed ordinance ever
adopted or if not, is there an update to report?

A: On July 20, 2022, the Chicago City Council's Committee on
Housing and Real Estate proposed an ordinance called the
Electric Vehicle Right to Charge Ordinance. The proposed
ordinance would grant unit owners (and tenants) the right to
tie into a community association's garage common electrical
system to install an electric vehicle charging station to
serve their "exclusive" parking space (i.e., parking unit or
limited common element parking space) so long as certain
conditions are met.

However, the proposed ordinance has not yet been approved by
the City Council. In fact, the proposed ordinance has not
yet moved through the legislative process most likely
because as drafted there are many concerns with the
legislation that need to be further addressed.

Q: I live in a mid?size condominium association where unit
owners have always been invited to attend and voice their
concerns. Recently, unit owners were informed that they
would no longer be allowed to speak at board meetings and
unit owners have been directed to email their issues to the
management company. Is it true that unit owners are not
entitled to speak during board meetings?

A: From a legal standpoint, per Section 18(a)(9) of the
Condominium Act, unit owners are entitled to observe the
open portion of a board meeting but are not entitled to
speak. However, from a practical standpoint, most
condominium boards give unit owners the opportunity to ask
questions and/or raise concerns during a homeowners' open
forum before the board meeting is called to order for
purposes of engaging with the unit owners (who have an
ownership interest in the association).

Publication date: Apr 9, 2023

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Q: I am on the board of directors of a midsize condominium
association. Our declaration and bylaws have no restrictions
on rentals. The board would like to seek unit owner approval
to amend the declaration and bylaws to provide that any
purchaser of a unit after the effective date of the
amendment may not rent their unit for more than 24 months.
Current unit owners would be grandfathered to obtain their
support to reach the requisite unit owner approval. Is this
legal? Someone on the board claimed the amendment would
create two classes of ownership, which is prohibited by the
Condominium Act.

A: Section 18(b)(2) of the Condominium Act states that a
condominium association shall have one class of membership;
however, leasing restrictions via an amendment to
declaration and by-laws have been repeatedly upheld by
Illinois courts and courts in other states, thus, they do
not violate the one class of membership requirement in the
Condominium Act.

Illinois law holds that amendments to condominium
instruments approved by the unit owners will be upheld by
the courts unless such amendment violates a constitutional
right or is otherwise prohibited by statute. The
grandfathering of unit owners is also a common practice in
certain situations to entice the unit owners to vote in
favor of a declaration amendment, and also does not violate
the requirement for one class of membership because it
treats all unit owners as of the effective date of the
amendment the same.

Q: I am a unit owner in a condominium and live on the
penthouse floor under the roof. The roof had a leak and
caused damage to several of the penthouse floor units.
Historically, the board has paid for roof repairs plus any
damages up to and including the drywall in the interior of
the units. Can the board arbitrarily change their policy and
refuse to pay for drywall repairs emanating from a leak of
the common elements?

A: Section 12(a)(1) of the Condominium Act requires
condominium associations to procure property insurance on
the common elements and units, including limited common
elements up to the bare walls, floors and ceilings of the
unit. Most declarations mirror the foregoing requirement
that the association repair damages up to and including the
drywall and a primer coat of paint in units. The coverings
of walls, floors and ceilings in units such as painting,
hardwood flooring or wallpaper are the responsibility of
unit owners.

The board of directors cannot arbitrarily change the
requirements for coverage of damages emanating from a common
element contained in the Condominium Act or the
association’s governing documents.

Q: I am a unit owner in a large condominium association
comprised of many different buildings. Our board has
embarked on a major, five-year roof repair and replacement
project, and the board also wants to retain a project
manager to oversee the project. In my opinion the management
company is paid for overseeing all work at the property. Is
the board allowed to spend the additional money to hire a
separate company to be a project manager?

A: Management companies for community associations are
governed by the management agreement between the association
and the management company. The scope of services a
management company is required to provide are contained in
the management agreement, which would rarely, if ever,
include project management services. Property managers may
coordinate access to common elements, but it is unlikely
that a property manager has the requisite knowledge to be a
qualified project manager reviewing contractor work product
and assessing completion per a construction contract,
especially for a major roof repair and replacement project.

Pursuant to Section 18.4 of the Condominium Act, the board
has the authority to enter into contracts in its reasonable
judgment, which would include project management services.

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Publication date: May 14, 2023

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Q. I am the treasurer of our condominium association. One of
our owners purchased a unit several years ago and began
remodeling his residence. Work was done by at least five
contractors and was never finished. Liens were filed against
the unit by these contractors.

The owner never lived in the unit and has not paid his
assessments for more than a year. His arrearage is greatly
affecting the association's financial structure.

We sued the owner and obtained a judgment for assessments.
The association can take possession of the unit this month
and rent it out. The unit is not finished. The association
cannot afford the cost of completing the remodeling work.

If the unit has been foreclosed, I understand that we can
only collect up to six months of back assessments.

Can you please clarify where the association stands with
this situation?

A. The association can file an eviction suit against the
owner and obtain a judgment for possession and assessments,
plus late charges and legal fees.

To collect on the judgment, the association has the
authority to rent the unit for a period of up to 13 months.
Under Section 9-111.1 of the Illinois Code of Civil
Procedure, the association may charge the unit for the
repairs necessary to make the unit rentable.

If the unit is also the subject of a foreclosure proceeding,
the association will have a right to obtain up to six months
of assessments that were due at the time of the foreclosure
sale.

The decision of the board to rent the unit and spend money
for repairs will depend upon the status of the foreclosure
case. If a foreclosure sale is imminent, it may not be
practical to renovate and lease the unit.

Foreclosure proceedings generally are taking longer to reach
the point of sale. The association may be able to recover a
substantial amount of assessments and the decorating costs
when the association recovers six months of assessments and
charges from the purchaser of the unit.

Q. Leasing is generally prohibited at our association, but
we do allow hardship exceptions. The board has the sole and
complete discretion to approve a hardship lease.

Our property manager has warned the board that anyone who is
denied permission to lease may sue the board for
discrimination if they seek a hardship exception if there is
no consistent criteria for granting a hardship lease.

I disagree with granting hardship exceptions. Accepting a
job elsewhere that requires relocation, for instance, does
not constitute an undue hardship. Do you agree?

A. Based upon the language of your declaration, the hardship
provision is fairly typical of leasing restrictions.

The board is bound by the guidelines of the leasing
amendment. For hardship exceptions, a board will have
discretion to examine each hardship claim. There is no basis
for a damage claim against the board unless the directors
have violated the civil rights of a protected group of
owners.

Circumstances such as the death of the owner, employment
relocation or a medical condition may constitute a valid
leasing hardship.

Q. My building is 2 years old, and the developer still owns
about 4 percent of the unsold units. At our elections, about
50 percent of the ownership casts a vote.

Is the developer allowed to vote the percentage of his
unsold units in the election? It seems like a conflict of
interest when the board is still trying to get the developer
to fix items that were cited in our engineering report.

A. As long as the developer is a unit owner, the developer
entity may vote the percentage of ownership for its unsold
units.

The right of the developer to vote is separate from any
claims the association may have under a warranty.

Publication date: Aug 8, 2010

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Q. I am a condominium owner ?considering purchasing an
electric vehicle and just heard about the Illinois
legislature's recent adoption of the Electric Vehicle
Charging Act. How does this Illinois statute differ from the
City of Chicago Electric Vehicle Right to Charge Ordinance?

A. The Electric Vehicle Charging Act is different from the
proposed City of Chicago Electric Vehicle Right to Charge
Ordinance (which remains proposed and is not yet adopted) in
two major respects. First, the Electric Vehicle Charging Act
is a State of Illinois statute and applies throughout the
State of Illinois, while the City of Chicago Right to Charge
Ordinance only applies to buildings in Chicago.

Second, after it goes into effect, the Electric Vehicle
Charging Act will require "newly constructed single-family
homes and multi-unit residential buildings" with parking
spaces, including condominium and community associations, to
provide the infrastructure for vehicle charging. Chicago's
"Right to Charge" Ordinance, meanwhile, would apply to
existing buildings.

To date, the Electric Vehicle Charging Act has only been
approved by the Illinois legislature. If the act is signed
by Governor Pritzker -- or not vetoed by Governor Pritzker
-- by July 3, it will become law and will be effective as of
Jan. 1, 2024.

Q. I live in a small self--managed condominium association
in Chicago. I brought up to our board of directors the idea
of charging selling unit owners a fee to compile a 22.1
disclosure with associated documentation. Can the
association charge a fee for that service and is $200 a
reasonable fee?

A. It is customary for condominium associations, especially
those that are professionally managed, to charge a fee to
issue a 22.1 disclosure letter and provide associated
documents. In fact, Section 22.1(c) of the Condominium Act
states that a reasonable fee, not to exceed $375, may be
charged by the association or board of directors covering
direct out-of-pocket costs. Thus, $200 is a reasonable fee
as well as any amount up to $375. Section 22.1(c) goes on to
index the $375 fee by the consumer price index during the
preceding 12-month calendar year.

Q. I am a unit owner in a high-rise building that has an
increasing number of short-term rentals. Short-term rentals
are not currently prohibited by the governing documents. We
are starting to experience a surge of problems with these
tenants. What remedies does the board possess to address the
situation?

A. In the absence of the unit owners adopting an amendment
to the declaration and bylaws to restrict leasing with
reasonable provisions that makes sense for the building, for
a tenant that violates the governing documents, the board of
directors possesses authority to levy fines against the unit
owner who is leasing their unit pursuant to section 18.4(l)
of the Condominium Act. Additionally, the board of directors
can file a lawsuit against the tenant and the unit owner to
evict the tenant pursuant to Section 18(n) of the
Condominium Act. Per Section 9.2 of the Condominium Act, the
board is entitled to recover legal fees and costs incurred
in enforcing the governing documents.

Publication date: Jun 11, 2023

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Q. The builder of my condominium association went bankrupt
before the association was turned over to the unit owners.

We have a management company running things that is not
answerable to anyone. The property manager tells us that we
cannot form our own board until the bankruptcy proceedings
are complete. Is this correct?

A. Under Illinois law, the completion of the bankruptcy case
is not related to the election of the first owner board.

Given the status of the party that may own many of the
units, the ownership should notify the bankruptcy trustee
and the debtor's counsel of the election to choose a first
unit-owner board.

Under Section 18.2 of the Condominium Act, the owners may
elect the first unit-owner board within three years after
the date the declaration has been recorded or 75 percent of
the units have been closed, whichever occurs first.

The bankruptcy court administers the property and the assets
of the bankrupt builder, and not the association.

Even if the builder's assets include unsold units in the
association, the administration of the association is
subject to state law.

Q. Our association is imploding. One segment of the owners,
controlled by one board member, is trying to overthrow the
other four board members in our five-member board.

Owners have been barraged by both factions with
misinformation. The police have been called at the last two
board meetings.

Is there a governing board that we can report to? Owners are
trying to call a special meeting to remove the current
directors. Owners are soliciting proxies throughout the
property.

How on earth do we stop this?

A. There is no state agency that will intervene to inject
common sense into your association.

If the association ceases to function, an owner may file a
lawsuit for a judicial dissolution of the association by
court order under the Not-for-Profit Corporation Act.

Grounds for judicial dissolution include the deadlock of
directors, or the association is unable to carry out its
purposes. The members of the corporation can petition the
court to appoint a receiver to operate the property. The
solution will only generate additional cost to the
association for fees of the receiver and the receiver's
counsel.

Given the salary of board members, it is hard to imagine the
job generates such hostility. The main victims of these
actions will be the unit owners. Property values will
decrease, and management companies will avoid your property.

Q. Our board consists of seven members, including the
president. Some of us think that the president should not
vote on issues unless he needs to break a tie vote. Is this
correct?

A. The president is a director who was elected by the owners
to cast his or her vote on business decisions affecting the
association.

Robert's Rules of Order states that the president votes only
to create a tie or break a tie. Robert's Rules is the
official guide for a meeting only when this source is
specifically referenced in the bylaws or the rules of the
association.

This limited voting rule of the president is not consistent
with Illinois law.

Q. My association had a small special assessment billed over
four months at no interest. One board member did not pay any
of the installments, and his account has been sent to the
association's attorney. Is this board member allowed to
remain on the board?

A. Unfortunately, yes. The only qualification for a director
is to be a unit owner. His fellow board members should
persuade the delinquent director to resign, or owners should
petition to remove him as a director.

Publication date: Aug 29, 2010

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Q: I live in a high-rise building and the tenants in the
unit above mine are very noisy in the early morning and past
midnight many nights a week. I have complained to the
management office regularly regarding these unreasonable
noise disturbances and no action has been taken by the board
of directors to address the disturbances. What are the
board's remedies to address this type of situation?

A: The board of directors of a condominium association
possesses strong remedies relating to tenants violating the
association's governing documents. Per Section 18.4(l) and
9.2 of the Condominium Act, the owner of the unit may be
levied a fine for their tenants' conduct. Additionally,
pursuant to Section 18(n) of the Condominium Act, the
association's governing documents are incorporated into
every lease and grant the condominium association the right
to evict a tenant for violations of the governing documents,
including the prohibition of noxious and offensive
activities that is standard in condominium bylaws. In both
circumstances, the unit owner is liable for legal fees and
costs incurred.

Thus, for tenant violations, the first step for the board is
to issue a notice of violation and hold a fine hearing
regarding the violations. In situations when fines do not
lead to an abatement of the noise disturbances, a second
option is for the board is to initiate an eviction lawsuit
to evict the tenants from the unit.

Q: I live in a large condominium association and election
season is upon us. Every year, we experience aggressive
campaigning with some unit owners going door-to-door asking
other unit owners to execute a proxy appointing the
campaigner as a proxy holder to support their slate of
candidates. What options does the board have to mitigate
toxic campaigning?

A: While most community associations do not experience toxic
campaigning for board elections, on occasion, it does occur.
For those communities that are experiencing such issues, the
board can adopt election rules and regulations to limit or
prohibit campaigning in the common areas and prohibit door
drops of campaign materials. Further, many associations
choose to adopt an absentee balloting system for condominium
board elections per Section 18(b)(9) of the Condominium Act,
which eliminates the use of proxies and creates a
convenience for unit owners who like to have ballots
distributed to them directly rather than waiting for the
annual meeting.

Absentee balloting is a system of voting where the
association board or managing agent distributes directly to
all unit owners an actual election ballot that contains the
names of declared candidates, and a space for write-in
candidates, rather than a proxy to be used for the election,
where a unit owner names a proxyholder to appear at the
annual meeting on their behalf to vote. It should be noted
that per Section 18(b)(9), absentee ballot rules must be
adopted at least 120 days before the annual meeting in which
they are intended to be used.

Q: I live in a high-rise building where our air-conditioning
system uses a common element chiller for cooling. For a
portion of the air conditioning season, the association's
air conditioning chiller was not working because of
mechanical issues. Am I allowed to withhold the payment of
assessments during that time period or offset my assessments
because I purchased a window air conditioner?

A: Unit owners may not withhold the payment of assessments
because of issues relating to maintenance, repair and
replacement of the common elements or deduct personal
incurred expenses from assessments.

Section 9(a) of the Condominium Act requires unit owners to
pay their pro rata share of assessments (based on the
budget). Further, in 2014, the Illinois Supreme Court held
that an association's alleged failure to repair and maintain
the common elements is not a basis to withhold or deduct
assessments per the case of Spanish Court Two Condominium
Association v. Lisa Carlson.

Publication date: Nov 14, 2021

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Q: I am on the board of a midsize condominium building and a
top floor unit has two leaks in the ceiling. It has been
determined that the cause of the leaks is condensation
around air-conditioning ducts due to improperly insulated
duct work relating to the unit's air-conditioning system.
Each unit has its own air-conditioning system on the roof.
Is the repair cost a unit owner or association
responsibility?

A: An HVAC system that exclusively serves a single unit is
deemed a limited common element. The determinative factor as
to who bears the cost for maintaining, repairing or
replacing a limited common element is found in the
condominium declaration.

Most condominium declarations expressly state that a unit
owner is responsible for the maintenance, repair and
replacement of the limited common elements serving their
units. Additionally, such provisions also customarily state
that the board of directors may perform the required
maintenance, repair and replacement and assess the costs
back to the unit owner.

Q: I own a unit in a large condominium association. The
owners of the unit above me smoke profusely and the odor
transmits into our unit. The management company told me
there is nothing they can do about smoke transmission. Is
that true?

A: Smoke transmission between units occurs on occasion in
condominium associations. Some condominium associations have
chosen to amend their declaration or bylaws to prohibit
smoking in units and appurtenant limited common elements
such as balconies, which requires unit owner approval. Even
if a condominium association does not have a smoking
prohibition amendment, condominium bylaws contain a
prohibition against noxious or offensive activities that
occur in a unit that are disruptive to other unit owners.

Smoke transmission that leaves the boundaries of the unit
may be deemed by the board of directors to be a noxious and
offensive activity, no different from unreasonably loud
music or loud parties at unreasonable hours of the night.

If a unit owner smokes in their unit, they have the
responsibility to ensure that their smoke and its odor does
not emanate out of the boundaries of their unit into other
units, otherwise, that unit owner may be subject to board
levied fines and/or injunction lawsuit.

Q: I live in a condominium building that was developed in
the 1980s. As part of an improvements project to building
mechanical systems, the board retained an architect to
create mechanical plans for the building. A non-board member
somehow obtained a copy of the mechanical plans and shared
the information with another unit owner who is not a board
member. Given that the plans contain information about the
boundaries of my unit, I feel like an invasion of my privacy
occurred. Is there anything improper here?

A: Mechanical plans for a building are not confidential
information. In fact, every condominium declaration contains
a survey that specifically outlines the boundaries of every
unit in the association, including horizontal and vertical
measurements. Additionally, any unit owner can make a
Freedom of Information Act request to most municipalities
for a copy of construction plans and specifications
submitted to the municipality for the construction of the
building.

Publication date: Dec 12, 2021

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Q: The city of Chicago adopted a proof-of-vaccine mandate
that took effect on Jan. 3, 2021, requiring proof of
vaccination to enter certain locations. Does the Chicago
proof-of-vaccine mandate apply to condominiums, homeowners
or co-op common elements/areas?

A: No. The city of Chicago proof-of-vaccine mandate, which
took effect on Jan. 3, 2021, due to the omicron variant and
worsening COVID-19 metrics in Chicago, does not apply to
condominiums, homeowners or co-op common elements/areas
including community association fitness centers, community
rooms and the like that are reserved for owners, residents
and tenants but not the general public.

The mandate requires submission of proof of vaccination for
individuals 5 years of age or older to enter indoor "covered
locations" such as restaurants, bars, coffee shops, gyms,
fitness centers, movie theaters, concert venues, sports
arenas, bowling alleys, etc. However, the order expressly
excludes from the definition of "covered locations" all
locations in residential or office buildings, the use of
which is limited to owners, residents or tenants of that
building.

Q: I live in a six-unit condominium association and our
condominium declaration and bylaws were recorded in 1974. I
presume our bylaws are now out of date due to so many
amendments to the Condominium Act over the last 50 years. Do
you recommend that our declaration and bylaws be updated?

A: The Condominium Act applies to all condominiums in the
state of Illinois. Pursuant to Section 2.1 of the
Condominium Act, any provision of a condominium instrument
inconsistent with the Condominium Act is void against public
policy and ineffective.

This means that to the extent a condominium declaration or
bylaws provision is inconsistent with the Condominium Act,
such provision is void and the Condominium Act provisions
would control. While there is no legal requirement to amend
and restate a condominium declaration and bylaws to bring it
into conformity with the Condominium Act, a declaration and
bylaws almost 50 years old is ripe to be amended and
restated so that the bylaws contain provisions consistent
with the Condominium Act, so the board of directors is aware
of current applicable statutory provisions and to avoid
unintentional application of a void provision.

Q: I live in a condominium association and a neighboring
unit installed a Ring doorbell with a video camera on her
door. Is a unit owner entitled to do so?

A: Condominium unit doors are limited common elements under
the provisions of the Condominium Act and condominium
declarations. The use and occupancy provisions of
condominium declarations and bylaws universally prohibit
modifications to the common elements, which includes limited
common elements, without permission of the board.

Condominium boards routinely reject requests from unit
owners to modify limited common element doors due to lack of
uniformity and aesthetics, as well as other unit owners'
objections to being filmed in their condominium hallway.

Publication date: Jan 16, 2022

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Q: What do community associations need to know as mask
mandates are lifted and CDC guidance evolves?

A: On Feb. 25, the CDC announced updated and relaxed
guidance regarding indoor masking. The new CDC guidance
classifies COVID-19 community levels as either “low”,
“medium” or “high.” The classification is based on three
community metrics: new COVID-19 hospital admissions over the
previous seven days; the percent of staffed inpatient beds
occupied by COVID-19 patients; and total new COVID-19 cases
over the previous seven days.

At present, Cook County’s COVID-19 community level is
classified as low. If any of the three community metrics
change in Cook County in the weeks or months ahead, Cook
County’s COVID-19 community level may be adjusted by the CDC
and masking guidance may shift as well.

In addition to the updated CDC guidance, effective Feb. 28,
the statewide and city of Chicago indoor mask mandates were
lifted except for certain venues such as hospitals and
public transit. As such, state and citywide requirements to
wear masks in indoor common areas are no longer in place.

While community association boards still have the authority
to continue requiring masks in indoor common areas (should
they elect to do so), given the updated CDC guidance
regarding wearing masks indoors in congregate settings and
the repeal of the Illinois and city of Chicago indoor mask
mandates, there is little basis for community associations
to keep their indoor mask mandates in place.

As long as the current metrics remain in place, it is
reasonable for community association boards to repeal their
indoor mask mandates for indoor common areas and modify any
temporary COVID-19 protocols, as appropriate, while
continuing to monitor metrics for any changes that could
require another pivot in COVID-19 protocols.

Q: I just purchased a condominium in a four-unit association
and the three board members are all nonresident owners. The
association is not being administered properly. Is there any
requirement in Illinois law that restricts board service to
resident owners?

A: Pursuant to Section 18(a)(1) of the Condominium Act, the
only requirement to serve as a member of the board is to be
a unit owner. Thus, there is nothing improper if all
directors of an association are nonresident unit owners
versus resident unit owners.

However, Section 18(a)(1) was amended last year to allow a
condominium declaration to be amended by the requisite unit
owner vote to provide that a majority of the board
directors, or a lesser number if specified in the
declaration, must be unit owners occupying their unit as a
primary residence.

It should be noted that amending a condominium declaration
requires the approval of at least two-thirds of the unit
owners.

Got a question for the Condo Adviser? Email ctc-
realestate@chicagotribune.com .

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listings and real estate news.

Publication date: Mar 11, 2022

----------------------------------------------------------------
Q. I own a condominium, and I had a water leak that emanated
from a pipe in the unit above. The water leak caused damage
to my drywall ceiling. The unit owner had the pipe repaired
but refuses to cover the damages to my unit. Who is
responsible for repairing my drywall?

A. Section 9.1(a) of the Condominium Act states, in part,
that a unit owner shall be liable for any damage as a result
of the use or operation of the unit or caused by their own
conduct. This means that ultimately the owner of the unit
the water leak emanated from will be responsible for damages
to the other unit, however, the association has the
responsibility to repair drywall damage in a unit up to a
primer coat of paint and in most circumstances, will assess
the cost thereof to the unit owner where the water leak
emanated per Section 9.1 of the Condominium Act.

Q. I’m on the board of a small, self-managed condominium
association. We recently became aware that Fannie Mae
published new lender guidelines that require condominium
associations to answer a new Fannie Mae condominium project
questionnaire addendum that contains, in my opinion, overly
broad questions relating to the condition of the building.
Are condominium associations required to respond to these
questions?

A. An Illinois condominium association is not required under
the Condominium Act to provide a response to the new Fannie
Mae condominium project questionnaire addendum, however,
condominium boards may feel forced to provide responses to
these questions in order to facilitate unit sales and
refinancing opportunities for owners. The board will need to
make a decision as to whether to provide responses to the
questions in the addendum, and if so, the extent of those
responses. The board will also need to decide what, if any,
reports or supplemental documents the board will provide to
lenders as a part of their response.

In addition, no matter what response the board ultimately
decides on, it is recommended that the responses be reviewed
by legal counsel given that some of the new questions
require representations on the condition of the building
that an ordinary lay person would not be in a position to
make. Thus, disclaimer language along with a board’s answers
is suggested to mitigate potential liability to the
condominium board.

Q. I have lived in my town home community for more than 25
years. I fell in love with the traditional gabled roof
architecture and warm colors of the buildings. However, our
association board president over the years has changed the
colors of exterior elements from time to time without owner
input or approval, which changes the character of the
building. Does a board president have the authority to
implement material changes to the exterior elements?

A. Architectural control and authority over the exterior
elements of a community association is set forth in the town
home declaration and bylaws that are recorded against the
town home association. Customarily, such documents provide
that the town home association is responsible for the
maintenance, repair and replacement of exterior elements. It
is possible, but would be highly unusual, for a town home
declaration and bylaws to grant the board of directors the
authority to change the architectural character of the
buildings at their whim.

In the unusual circumstance that the declaration and bylaws
do allow the board such authority, it would require a
majority vote of a quorum of the board. A board president
alone would not have the authority to make architectural
decisions on behalf of the board of directors.

Got a question for the Condo Adviser? Email ctc-
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Publication date: May 8, 2022

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Q. I am on the board of a midsize condominium association.
We are considering renting a portion of the common area to
unit owners to park motorcycles. How much income can a
condominium association earn from renting a portion of the
common area without jeopardizing our not-for-profit tax
status?

A. Not-for-profit status does not depend on how much a condo
association might earn by renting out common areas. But one
thing to consider is whether revenue would exceed expenses,
which could lead the condo association to have an income tax
liability.

Many associations earn extra revenue by renting amenity
spaces, roof antenna leases and the like. The board of
directors is best served to work with its accountant to
determine whether there is any income tax liability. There
are common strategies to manage income tax liability based
on expenses equalizing income, transferring excess income to
the reserve fund (if allowed under the governing documents)
or even giving the extra income to the unit owners.

Q. I am an owner in a condominium association and the
payment of assessments and special assessments is based on
the percentage of ownership assigned to units per the
condominium declaration, which means owners of larger units
pay more than owners of smaller units. Some owners cry foul
and say that all unit owners should pay the same amount for
assessments, citing friends who live in other states where
assessments are evenly divided among all unit owners. Is
there Illinois law on this topic?

A. In a condominium form of ownership, assessments and
special assessments are calculated based on unit
percentages. Section 4(e) of the Condominium Act governs how
unit percentages are calculated in Illinois.

Section 4(e) states that unit percentages are computed based
on the value of the units (i.e. by the developer taking as a
basis the value of each unit in relation to the value of the
property as a whole). Since larger units are often more
valuable than smaller units (i.e. with higher initial
purchase prices), it is expected that larger units will have
a higher unit percentage, and thus, pay higher assessments
compared with less valuable smaller units. Unless the value
of all condominium units was identical in the building when
it was originally developed, unit percentages would not be
the same for all units in a condominium.

Q. Have there been any legislative updates that affect
community associations?

A. On May 27, 2022, Gov. J.B. Pritzker signed two pieces of
legislation that amend the Condominium Act and Common
Interest Community Association Act (CICAA).

House Bill No. 4158 adds “any reserve study” to the list of
documents that must be made available to unit owners for
inspection under Section 19 of the Condominium Act or
Section 1-30(l) of CICAA. As such, beginning on Jan. 1,
2023, Illinois condominium associations and community
associations that are subject to CICAA must make a copy of
the reserve study available to any unit ownerswho ask for
it.

In addition, HB 4158 extends the requirement for
associations to comply with the Condominium and Common
Interest Community Ombudsperson Act to Jan. 1, 2024.

House Bill No. 5246 reduces the timeframe for condominium
associations to provide certain disclosures under Section
22.1 of the Condominium Act (unit resales) from 30 days to
10 business days. HB 5246 also caps the fees for the
production of documents under Section 22.1 of the
Condominium Act at $375 (with annual adjustments based on
the Consumer Price Index) and allows for an additional $100
charge “for rush service completed within 72 hours.” This
change to the Condominium Act takes effect as of Jan. 1,
2023.

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Publication date: Jun 19, 2022

----------------------------------------------------------------
Q. As a mortgage loan officer, I understand that government
insurance programs all have guidelines that state if more
than 15 percent of owners in a project do not pay their
assessments, the condominium will not be approved by a
lender for a mortgage.

This is a huge factor, and I found that it disqualifies
about 50 percent of condominiums from being eligible for
financing in this market.

Can you clarify this requirement?

A. Guidelines for FHA and Fannie Mae mortgage insurance
programs require that no more than 15 percent of the units
in the project are more than 30 days past due in
assessments. From my experience, most associations do not
have a delinquency rate that reaches the 15 percent level.
Nevertheless, the importance of mortgage-lending
requirements does force a board to pay particular attention
to assessment collections.

Diligent boards should review their assessment accounts on a
monthly basis and take legal action against any unit that is
more than 60 days past due.

Q. I am the president of our 117-unit town-home condominium
association. Our development is almost 10 years old, and we
are beginning to see large areas to repair.

We have 22 sidewalks that have cracked and present a
tripping problem to our owners, many of whom are seniors. We
own our streets, service driveways and sidewalks. In
applying for a permit for repairs, the contractor was
advised that for each sidewalk repair the permit could be
hundreds of dollars.

Why is there a financial penalty for maintenance? Who is
responsible for any mishap that may occur?

A. The cost of a permit is far less than a claim for
personal injuries against the association arising from the
failure to maintain your sidewalks. Associations and
management companies have been named in personal injury
claims.

The permit requirement is simply a cost of the work that
owners will have to pay in order for the board to properly
maintain the complex.

Q. Our 100-unit condo association is moving forward with the
process of limiting the number of leased units in our
building.

What is the maximum quantity of leased units to have without
affecting property values and bank financing?

A. The number of units that may affect property values is a
matter best explored by looking at local property
transactions.

Regarding bank financing, FHA requirements state that at
least 50 percent of the association must be owner-occupied.

- - -

FHA requirements

Delinquent association dues are just one of the issues the
FHA considers when examining projects. Others include:

Insurance coverage: Projects must be covered by hazard and
liability insurance.

Owner-occupancy ratios: At least 50 percent of project units
must be owner-occupied or sold to owners who intend to
occupy units.

TRIBUNE NEWSPAPERS

Publication date: Aug 22, 2010

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Q. What does the city’s new cooling ordinance do?

A. On June 22, 2022, the City of Chicago adopted a new
ordinance commonly referred to as the “Cooling Ordinance.”
The cooling ordinance modifies the cooling requirements for
high-rise residential buildings, including apartment,
condominium and community associations as well as
residential cooperatives in Chicago that are over 80 feet
tall or have more than 100 dwelling units. The cooling
ordinance was adopted on the heels of a heatwave in May that
resulted in the deaths of three residents of a senior living
facility in Chicago.

Applicable residential buildings must maintain “at least”
one indoor common area “cooling space” that is accessible to
all residents when the heat index exceeds 80 degrees
Fahrenheit and the “cooling and dehumidification system is
not available in each dwelling unit.” The cooling space must
have “cooling and dehumidification equipment capable of
maintaining a room temperature of 75 degrees Fahrenheit and
50% relative humidity” (i.e., air conditioning) when the
outdoor temperature is 92 degrees Fahrenheit and the mean
coincident wet bulb temperature is 74 degrees Fahrenheit.
The ordinance requires installation of temporary equipment
for the cooling space by July 1, and permanent equipment by
May 1, 2024.

Q. It is widely understood that the Federal Fair Housing
Amendments Act requires condominium associations to
reasonably accommodate mental disabilities by allowing an
emotional support animal to be kept in a unit to ameliorate
a resident’s disability. However, can the board restrict
emotional support animals to certain areas of the common
elements to accommodate residents who have severe cat and
dog allergies?

A. There is a well-established body of case law interpreting
the Federal Fair Housing Amendments Act that allows persons
with mental handicaps to keep an emotional support animal in
their unit, even in a no-pet building. However, at the same
time, case law holds that while reasonable accommodations
are required, some accommodations may not be reasonable
under the circumstances, and some may not be necessary for
the laudable goal of inclusion. The doctrine of reasonable
accommodation does not require thateverything humanly
possible be done to accommodate a person with disabilities
when there are adverse consequences to other residents. The
cost to other property owners and the condominium
association must be balanced against the benefits to the
requesting individual.

When granting an accommodation to allow an emotional support
animal in a unit, condominium boards have some latitude to
establish reasonable guidelines that balance the severe
allergies of an individual resident. It is a case-by-case
analysis and solution.

Q. I own a condominium and several units in our association
were recently destroyed in a fire. Rebuilding of the units
is estimated to take 12 months or longer. The affected unit
owners have asked if they can withhold their unit’s monthly
assessments until their units are rebuilt, however, that
will result in a budget shortfall for the association. Are
unit owners whose units were destroyed by fire entitled to
withhold their monthly assessments until the units are
rebuilt?

A. Section 9(a) of the Condominium Act requires all unit
owners to pay their proportionate share of the common
expenses. In fact, section 18(o) of the Condominium Act
prohibits a condominium board from forbearing the payment of
assessments by a unit owner, which means a board cannot
simply write off or reduce a unit owner’s assessment
obligation.

Assessments are calculated based on a unit’s pro-rata share
of the budget. The budget is the estimate of costs for
administering the common elements of the association
including maintenance, repair and replacement, security of
the common elements, payment of insurance policy premiums
and etc. All units must pay their assessment obligation in
full even if a unit was destroyed by fire.

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Publication date: Jul 17, 2022

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Q. I purchased a unit in a condominium association that has
an amendment to the condominium declaration that prohibits
smoking in the units and limited common element balconies.
Failure to comply with the smoking prohibition will subject
unit owners to significant fines and other remedies. Is a
smoking prohibition in a unit legally enforceable?

A. A condominium declaration itself is a restrictive
covenant on real estate that contains provisions that are
binding on unit owners, including the rights and
responsibilities of the association and the unit owners, as
well as use and occupancy provisions that limit how a unit
owner may use their unit. Condominium declarations are
living documents that may be amended with the requisite vote
of the unit owners, which may add additional restrictions
from those that were originally contained in the
declaration.

Common restrictions that can be approved by the unit owners
relate to leasing restrictions, smoking prohibitions and
even shifting maintenance, repair and replacement
responsibilities from a condominium association to a unit
owner. Amendments that are properly adopted are legally
enforceable unless they violate a constitutional right.

Q. I live in a master association. Our master board took out
a loan for landscaping improvements. Is a master board able
to approve a loan without a vote of the unit owners?

A. In Illinois, the statute directly governing master
associations is section 18.5 of the Condominium Act. The
remainder of the Condominium Act applies only to
condominiums. Section 18.5 does not contain requirements
regarding the adoption of special assessments, thus, for a
master association, the master association declaration
itself governs the board’s authority regarding the adoption
of special assessments. If the master association
declaration allows the board to adopt a special assessment
within a board vote only, the board has the authority to do
so.

Q. I live in a midrise condominium association and our
condominium board is reluctant to commission a reserve study
due to board members fearing liability if they do not
implement every recommendation in the reserve study and
increase assessments to pay for property conditions that
need to be repaired or replaced in the future. Is it
recommended for condominium boards to commission a reserve
study?

A. A reserve study is one of many tools a condominium board
may take into consideration to fulfill the legal requirement
per section 9(c) of the Condominium Act for a condominium
budget to contain reasonable reserves for capital
expenditures and deferred maintenance. Whether a board
commissions a reserve study or not, board members have a
fiduciary obligation to maintain, repair and replace the
common elements and budget for such future expenses. Failure
to perform such maintenance, repair and replacement when
needed could expose a board member to liability.

A reserve study is recommended to assist boards with
understanding the remaining useful life of building common
elements for budgeting purposes, thus it is a guide to
educate the board on the timing of when common elements
components may need repairs or replacements. While the
reserve study is not legally required to be procured, the
board may otherwise be challenged to fully understand the
condition of the common elements to properly plan for future
capital expenditures.

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Publication date: Aug 21, 2022

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Q. I own a unit in a self-managed condominium association
and experienced a second water leak from the unit above
mine. The unit above belongs to the president of the
association. After the first water incident, the association
refused to fix and paint my drywall. What am I entitled to
have addressed?

A. Per section 12 of the Condominium Act, when water leaks
into a unit, the association is responsible for replacing
the damaged drywall and having a primer coat of paint
applied. The association is not required to replace wall
coverings such as paint or wallpaper. If the water
infiltration incident originated from within a unit (rather
than a common element pipe), the association may have cause
to hold the unit where the water originated responsible.

Q. I am on the board of a small condominium association. We
have a new unit owner that moved in about six months ago,
and since that time, there have been multiple instances of
drunk and belligerent behavior. The unit owner has also
verbally abused board members and other unit owners. The
police and fire department have been called on multiple
occasions. What is our recourse to address bad behavior?

A. Condominium declarations and bylaws contain a provision
in the use and occupancy section that basically states a
unit owner shall not commit noxious or offensive activity in
the unit or common elements or engage in conduct that may be
a nuisance or disturbance to other unit owners and
occupants. Abusive behavior would clearly be deemed a
violation of such a provision.

Pursuant to sections 9.2 and 18.4(l) of the Condominium Act,
the board may levy substantial fines against the unit owner
for such violations, and assess the legal fees incurred by
the association for enforcing the declaration and bylaws. If
fines do not end the violations, the board may file a
lawsuit for mandatory injunctive relief to obtain a court
order to stop such behavior, and if the declaration contains
a provision for a forced judicial sale, with extreme factual
circumstances, the board could proceed with such a remedy.

Q. My husband and I want to downsize from a 3,000 square-
foot house into a condominium unit in the city. Neither one
of us has ever lived in a condominium nor do we know anyone
who lives in a condominium. I have heard horror stories
about condominium living and I’m concerned about how to
evaluate community association living before we make a
purchase. What questions do you recommend I ask that would
help me avoid a disaster?

A. While the metaphor “one bad apple can spoil a barrel”
applies to some contexts, community association living is
desirable for myriad reasons and can be quite rewarding. The
most basic rationale is that by living in a community
association a board of directors handles the maintenance,
repair and replacement of the common elements, which is
quite different from owning a single-family home where the
homeowner is responsible for those. Also, costs for
maintenance and services are shared, and neighbors in the
same building become friends. In terms of questions to ask,
prospective purchasers of a condominium unit should request
answers to the list of disclosures contained in Section 22.1
of the Condominium Act. The disclosures include financial
disclosures of anticipated capital expenditures for the
current and succeeding two years, as well as other
representations about the association and the unit.
Additionally, wise prospective purchasers will request many
years’ worth of board meeting minutes, and review those
minutes, to determine if the board has been discussing
particular issues or problems within the association.

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Publication date: May 5, 2021

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Q. I serve on a condominium association board of directors.
I recently heard on the news that the state of Illinois, and
the city of Chicago, is on target to enter phase five of the
Restore Illinois Plan (relating to COVID-19) set by Gov.
Pritzker. What does this mean for condominium associations?

A. Both the state of Illinois and city of Chicago are
expected to enter phase five of the Restore Illinois Plan on
June 11. While COVID-19 restrictions and protocols are
constantly evolving, and it is possible that new safety
guidance and procedures will be implemented for phase five
and/or the start date for phase five will be changed, below
is a brief summary of considerations regarding masks and
reopening of amenities that community associations can
expect.

Masks. There is currently no statewide mask mandate, and the
city of Chicago requirement for masks to be worn while in
common areas of a residential multiunit building was lifted
as of May 18. However, updated city of Chicago Executive
Order 2020-09 currently requires that persons over the age
of 2 who are not fully vaccinated, and are able to medically
tolerate it, wear a mask and practice social distancing when
in a public space.

Restrictions on use of amenities. It is expected that phase
five will bring about the end of state and local COVID-19
capacity restrictions for community association amenities
such as pools, fitness centers and hospitality rooms.
Community association boards may nonetheless continue to
impose COVID-19 protocols and restrictions for amenities
during phase five, such as enhanced cleaning/sanitizing,
reduced capacity and a reservation system for using
amenities.

Q. I have a question about the use of association legal
counsel by the board of directors. Is board approval at a
meeting required before the board president may communicate
with legal counsel when a legal issue arises, or can the
president contact counsel when needed without a board
discussion first?

A. Procedurally, the board of directors votes to approve the
retention of legal counsel. Customarily, the board president
and/or the property manager (if there is a property manager)
is the primary contact with association legal counsel unless
a majority of the quorum of the board designates a different
primary contact. The primary contact may contact association
legal counsel as needed.

There are, however, certain decisions that might require
board approval to direct association legal counsel such as
initiating a lawsuit on behalf of the association. Governing
document enforcement, including collections, are customarily
covered in the rules and regulations, which commonly allow
management to commence legal enforcement.

Q. I am a unit owner in a Chicago condominium association.
The association’s rules and regulations forbid unit owners
from walking their dogs on a grassy piece of city of Chicago
property adjacent to the condominium building. The board
recently voted to start fining unit owners if they walk
their dogs on city of Chicago property. Can a condo board
levy fines related to the use of Chicago public property?

A. Section 18.4(a) of the Condominium Act, and all
condominium declaration and bylaws, grant the board the
authority to administer the common elements of the
condominium association. However, there is no legal basis
whatsoever for a condominium board to levy fines related to
use of noncommon elements such as city of Chicago property.
Only the city of Chicago can enforce pet restrictions (if
any) on city property.

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Publication date: Jun 9, 2021

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Q. In light of the recent condominium building collapse in
Florida, as a board member of a Chicago condominium
association, how should our board of directors be dealing
with our building infrastructure?

A. Pursuant to Section 18.4(a) of the Condominium Act, the
association’s declaration and bylaws, and applicable law,
condominium boards of directors have a fiduciary obligation
to maintain, repair and replace the common elements. As
such, boards are well served to retain appropriate
professionals to advise the board on the condition of its
common element components and building infrastructure. The
most common step a condominium board will take when dealing
with aging infrastructure is to retain an engineer to
perform a reserve study of the building infrastructure to
assess the remaining useful life of the common element
components. The reserve study is a guide for the board to
understand the need for future repairs, and contains
estimates for the funding of those future repairs. Section
9(c) of the Condominium Act requires condominium budgets in
Illinois provide a reasonable reserve for capital
expenditures and deferred maintenance, repair and
replacement of the common elements.

There is no statute in the City of Chicago that requires a
structural analysis of a high-rise building (since
practically speaking, high-rise construction methods in
Chicago use structural steel that is concealed behind
drywall and not visible to be inspected); however, the City
of Chicago does have the Exterior Wall Maintenance
Ordinance, which requires regular façade inspections by an
engineer, and submission of reports, for buildings over 80
feet in height.

Q. I am currently living in a condominium and for the most
part enjoy condo living and the shared costs of maintenance
versus being a homeowner. I’m looking to move into another
condominium but with a roof deck or terrace for more private
outdoor space, which I understand is considered a limited
common element because the roof deck only serves one unit.
The cost to maintain, repair or replace common elements such
as the roof under a roof deck is a common expense. However,
I am wondering if the association or the unit owner is
responsible for the cost of removing a roof deck terrace to
access the roof for common element repairs?

A. In the absence of specific provisions in the condominium
declaration or bylaws that specifically address the
responsibility for removing a roof deck to access the roof
for common element repairs, it is universally enforced that
unit owners are responsible for removing (and replacing if
they so choose), at their sole cost, a roof deck in order
for the association to access the common element roof for
repairs.

Q. My husband and I currently live in a single-family home
and we want to downsize into a condominium. Neither one of
us has ever lived in a condominium. I read the stories in
the Condo Adviser column and I’m concerned about how to
evaluate a condominium association before we make a
purchase. Is there a list of questions or documents
prospective purchasers should be asking for?

A. While not required by law, most purchasers of real estate
in Illinois retain legal counsel to represent them through
the process of purchasing real estate. Legal counsel will
alsorequest customary documents and information to protect
the prospective purchaser.

For condominium purchases, a condominium disclosure per
Section 22.1 of the Condominium Act, which includes a
laundry list of disclosures including anticipated capital
expenditures in the current and succeeding two years, and
information regarding the association’s reserve fund, is
commonly requested. Condominium purchasers also customarily
request copies of board meeting minutes for review (up to
the previous seven years) to see what issues and decisions
are reflected in the board meeting minutes. Other common
inquiries relate to current or prospective special
assessments.

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Publication date: Jul 16, 2021

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Q. I am a board member in a high-rise condominium building
with elderly residents. Many of our elderly residents have
become very concerned about the new COVID-19 Delta variant
and are clamoring for the board to consider requiring masks
in the common areas again as our association required for
most of the pandemic until Illinois went into Phase 5. Have
there been any updates to governmental guidelines relating
to masks?

A. On July 27, 2021, the CDC issued updated mask guidance
for persons who are fully vaccinated. The updated guidance
advises that fully vaccinated persons “wear a mask indoors
in public if you are in an area of “substantial” or “high”
transmission as identified by the CDC Covid data tracker.
Prior CDC guidance advised only unvaccinated persons to wear
a mask indoors, but did not include such a recommendation
for a fully vaccinated person. The new CDC guidance is
specifically due to the Delta variant, worsening COVID - 19
metrics, and relatively low vaccination rates nationwide.

As of July 30, 2021, Chicago (Cook County) is designated as
an area of “substantial“ transmission per the CDC’s COVID
data tracker and thus, the new CDC recommendation for fully
vaccinated persons to wear a mask indoors in public applies
to Chicagoland. The level of transmission in Chicagoland and
statewide is subject to change as the pandemic is fluid and
constantly changing.

Q. I am a unit owner in a condominium and experienced damage
to my unit flooring due to a water pipe burst in the
hallway, a common area. The water came from the hallway into
my unit from beneath my entry door. What is the
responsibility of the association to repair or compensate me
for the damages to my unit?

A. Pursuant to Section 12 of the Condominium Act, a
condominium association is required to have insurance for
the repair or replacement of bare walls, floors and ceilings
in a unit, including a primer coat of paint. Unit owners are
responsible for the decorating in their units and also per
Section 12, floor, wall and ceiling coverings. Floor, wall
and ceiling coverings include hardwood floors and paint or
wallpaper on drywall. A unit owner’s homeowners insurance
should cover floor coverings.

Q. I am a unit owner in a suburban condominium association.
I believe another unit owner in the association is keeping a
bat as a pet. Keeping a bat as a pet terrifies me since it
is so unusual and the correlation of bats to possibly being
the cause of the COVID pandemic. Is a unit owner allowed to
keep a bat as a pet in condominium unit?

A. Pets in condominium associations are regulated by pet
provisions in the condominium declaration and by-laws. Most
condominium declarations and by-laws limit pets to pets
commonly kept in households such as dogs, cats or fish.
Hamsters or small reptiles would likely fit the definition
of a common household pet; however, assuming the declaration
and by-laws contains customary pet restrictions, the board
would have a valid basis to demand and require the removal
of a bat as a pet in a condominium unit.

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Publication date: Aug 6, 2021

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Q. I live in a condominium high-rise and our management
company has posted signs that masks are required to be worn
in the indoor common elements. What is the legal authority
for a mask mandate that requires me to wear a mask just to
access my condominium unit?

A. Due to the surge of COVID- 19 due to the Delta variant,
various government bodies in Illinois have reimplemented
mask mandates that had previously expired or had been
rescinded. Specifically, in the City of Chicago, Public
Health Order 2021-1, which became effective on Aug. 20,
currently mandates masks for all persons above the age of 2
who can medically tolerate a mask in indoor public settings,
expressly including common or shared spaces in a multiunit
residential building or condominium building. The Cook
County Department of Public Health issued a mandate for
indoor public areas also effective Aug. 20 that includes
multiunit residential buildings and condominium buildings.
Gov. J.B. Pritzker then issued Executive Order 2021-20
effective Aug. 30 that implemented a mask mandate for all
indoor public areas throughout the State of Illinois, which
would include indoor communal areas of residential and
condominium buildings.

Q. I am a unit owner in a condominium association with just
under 300 units and an annual budget of over $1 million
dollars where a majority of the directors are nonoccupant
unit owners. The board has not retained an accountant to
perform audited financial statements of association finances
for at least the last 13 years. What does Illinois
condominium law require regarding financial statements?

A. The Condominium Act does not require condominium
associations to compile audited financial statements;
however, section 18(a)(7) of the Condominium Act does
require condominium boards to annually supply to all unit
owners an itemized accounting of common expenses for the
preceding year, together with an indication of which
portions were for reserves, capital expenditures or repairs
or payment of real estate taxes. That itemized accounting
also is required to show the net excess or deficit of income
over expenditures plus reserves. For condominium
associations that consist of 100 and more units, Section
18.10 of the Condominium Act requires the condominium to use
generally accepted accounting principles in fulfilling
obligations required under the Condominium Act.

Q. I am a shareholder in a residential cooperative. My
apartment was assigned a storage space; however,
modifications to the building eliminated the ability to use
storage space. Another shareholder is willing to permanently
give me the storage space assigned to his unit. How should
reassignment of the storage space to my apartment be
documented?

A. In a residential cooperative, a corporation owns all the
real estate of a building and enters into leases with
individual shareholders of the corporation to use and occupy
a specific apartment in the building and storage spaces, if
applicable. The lease document is called a proprietary
lease. A reassignment of a storage space between the
corporation and certain apartments requires an amendment to
the proprietary leases of both units; removing the storage
space assignment in one proprietary lease and adding it to
the second proprietary lease.

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Publication date: Sep 10, 2021

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Q. I am a unit owner in a mid-size condominium association
and there is enough dysfunction with our board of directors
to author a novel. For example, the board fails to provide
unit owners financial statements annually, as required by
the Condominium Act. It has borrowed money from our reserve
account to cover operating expenses due to poor financial
management three years in a row. And the board refuses to
comply with Section 19 of the Condominium Act financial
document requests by unit owners. What can unit owners do to
see the financial condition of our association if the board
refuses to provide access to financial information it is
required to provide under the Condominium Act?

A. Section 19 of the Condominium Act requires Illinois
condominium associations to provide certain documents to
unit owners upon written request, including access to books
and records of the association for the current and 10
immediately preceding fiscal years, including but not
limited to itemized and detailed records of all receipts,
expenditures, and accounts. Section 18(a)(7) requires the
board to supply unit owners annually an itemized accounting
of the common expenses for the preceding year.

Condominium associations must comply with the Condominium
Act, including a proper Section 19 request, or risk unit
owners filing a Section 19 lawsuit to obtain such access.
Unit owners should be aware that pursuant to Sections 19(b)
and 19(e), a unit owner that prevails in a lawsuit to compel
the examination of records is entitled to recover their
reasonable attorneys' fees and costs from the association,
which is a powerful right to enforce their right to inspect.

Q. I am a unit owner in a large condominium association, and
approximately 25% of the units in the association are
leased. Our board of directors feels it would be a good idea
to restrict the percentage of units allowed to be leased,
but I am not sure. Are there any compelling reasons to limit
the leasing percentage of units?

A. Restrictions on the percentage of units that may be
leased are commonplace in condominium associations. The most
compelling reason to restrict the percentage of units that
may be leased is that lenders do not favor making loans for
units in condominium associations when the lender feels the
leasing percentage is too high for its risk tolerance
(commonly 35% to 50%).

When that occurs, lenders are less (or not) interested in
providing financing to prospective buyers for purchase of
units, which ultimately affects unit values because when
selling unit owners have difficulty finding buyers, the
sales price is commonly decreased to sell the unit.

Legally speaking, if the percentage of units leased is in
excess of 50%, units in the condominium association will not
qualify for Fair Housing Authority-backed loans, which would
eliminate the secondary mortgage market for mortgages on
such units. That has the practical effect that most lenders
would not be interested in providing loans to perspective
purchasers for the purchase of the unit in the first place.

Q. I live in a 55-and-older retirement community
association. I heard there is a proposal in the Illinois
legislature imposing new temperature requirements for
55-and-older communities. What is the status of that
legislation?

A. The Illinois legislature recently approved amendments to
the Condominium Act and Common Interest Community
Association Act to impose certain temperature control
requirements for condominium and community associations "in
which the initial declaration limits ownership, rental, or
occupancy of a unit to a person 55 years of age or older."

For cooling (June 1-Sept. 30), the requirement is "cooling
systems must operate when the heat index exceeds 80 degrees
Fahrenheit". For heating (Oct. 1-May 31), the requirement is
"(i) between 6 a.m. and 10 p.m., heat must register at least
68 degrees Fahrenheit when the outside temperature falls
below 55 degrees Fahrenheit; and (ii) between 10 p.m. and 6
a.m., heat must register at least 62 degrees Fahrenheit".

These proposed amendments have been approved by the
legislature. If the proposed legislation is either signed by
the governor or not vetoed by the governor by Aug. 7, it
will become law and be effective as of June 1, 2024.

Publication date: Jul 9, 2023

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  Q: I live on the ground floor of a midrise condominium
association. Chipmunks have buried themselves under my patio
slab, and the slab has now lifted, cracking some patio
tiles.

The association's management company said it is my
responsibility to contract with an extermination company,
because the chipmunks are under my limited common element
patio. However, shouldn't the association hire the
extermination company, because the chipmunks are living in
common element ground underneath my patio?

A: It is the condominium board's responsibility to prevent
unwanted rodents from living in and around the common
elements.

While a patio appurtenant to a unit is defined as a limited
common element, and most declarations state the unit owner
is responsible for the maintenance, repair and replacement
of their limited common elements, the issue here is not
which party should repair the patio tiles but which party
should address the underlying cause of damage to the patio
in the form of unwanted rodents living beneath the patio.

The board should contract with the extermination company to
remove unwanted rodents from the property, and the
extermination costs are a common expense.

Q: I live in a small condominium association on the top
floor, and there is water infiltration coming from the roof
when it rains. I notified our property management company.
When repairs to the roof were arranged, another unit
prevented the contractor from making the necessary repairs,
which requires access through their unit. The board is in a
holding pattern. What recourse does the board have to ensure
the repairs will be implemented?

A: Pursuant to Section 18.4(a) of the Condominium Act, the
board must maintain, repair and replace the common elements,
which includes preventing water infiltration from the
exterior common elements into units.

To the extent access to a unit is required to make such
repairs, Section 18.4(j) of the Condominium Act allows the
board to access a unit as necessary for maintenance, repair
or replacement of the common elements or for making
emergency repairs necessary to prevent damage to the common
elements or other units.

The board should immediately issue a demand to the unit
owner for access to make necessary roof repairs, and if the
unit owner continues to resist, the board may levy fines
and, more important, file a declaratory lawsuit seeking a
court order to obtain access. Under Section 9.2 of the
Condominium Act, the unit owner will be responsible for the
association's legal fees and costs to gain access.

Q: In the past, our condominium management company charged
approximately $75 for a paid assessment and 22.1 disclosure
letter. However, the current management company is now using
a service to compile those letters, and the cost is about
$300 . This is a rip-off to me. Do I have to pay this
amount?

A: It is common for boards and/or management companies to
charge a fee for the preparation of a paid assessment and
22.1 disclosure letters and provide copies of requested
association governing documents. The board/management
company has wide latitude in setting such fees, so long as
they are reasonable.

While the association may have charged $75 in the past, such
amount in the current marketplace is significantly below
what is commonly charged. A fee of $300 is valid and
enforceable.

Publication date: Sep 13, 2015

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Q: I live in a self-managed condominium association. The
board installed three security cameras on the common
elements that record audio and video. The board president
controls the live feed and the recorded copy of video and
audio footage.

One of the cameras is mounted approximately 4 feet from my
master bedroom window and about 20 feet from another bedroom
window. We feel we have lost privacy in our home, especially
because with our windows open, we can easily be heard and
recorded. Is this allowed?

A: Condominium boards have the authority to install video
surveillance in the common elements of the association, and
commonly do so for security purposes. As a best practice,
the board should adopt guidelines for access to, and
retention of, video surveillance. The industry standard is
to destroy any recorded video footage after 30 days.

As far as surveillance cameras that record audio
communications without the consent of the recorded persons,
the Illinois eavesdropping law and federal Wiretap Act
prohibit such action.

Board members that allow the recording of audio
communications, or share any recorded audio communications
with others, are subject to potential liability and claims
for damages from individuals who are recorded without their
consent.

Q: I am on the board of a self-managed town home
association. One of the town home owners has advised the
board that the windows in his unit need replacement.

He somehow convinced the developer of the town homes to
provide new windows; now the homeowner is demanding the
association pay the labor to have the windows installed.
Must the association do so?

A: Whether the maintenance, repair or replacement of windows
in a town home association is the responsibility of the
association or the town home owner depends upon the language
contained in the declaration and bylaws.

In most town home associations, declarations customarily
state that town home owners are responsible for the
maintenance, repair and replacement of their windows subject
to guidelines from the board of directors, usually regarding
the manufacturer, style and color of windows.

In town home associations that follow the provisions of the
Illinois Condominium Property Act, declarations customarily
say that the maintenance, repair and replacement of windows
are the owner's financial responsibility, but the board has
the discretion to perform the work and direct charges back
to the town home owner.

Q: I am the owner of a 1,200-square-foot two-bedroom
condominium unit. I recently noticed a 1,500-square-foot
three-bedroom unit is for sale with a lower assessment than
my two-bedroom unit.

How does the board determine the amount of assessments each
unit is obligated to pay?

A: Condominium assessments are calculated by multiplying
each unit's percentage ownership -- which is stated in the
condominium declaration -- by the adopted annual budget, and
then dividing that number by 12 to determine the monthly
assessment amount.

Unit percentages are not set by the board of directors, but
instead by the developer that created the condominium
association. According to Section 4(e) of the Illinois
Condominium Property Act, developers calculate unit
percentages by taking the value of each unit and dividing it
by the aggregate value of all the condominium units as a
whole.

Therefore, unit percentages are based upon the initial
offering price; for various reasons, a smaller, more
desirable unit might have a higher initial offering price
than a three-bedroom unit, and thus, a higher unit
percentage.

Publication date: Dec 10, 2017

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Q: I live in a high-rise condominium and received
notification from the management company that playing the
piano in my unit has resulted in disturbance complaints from
another unit owner. I only play one to two hours a day
during daytime hours. The management company cited the
nuisance prohibition in our bylaws as the basis to demand I
stop the disturbances, which effectively means stop playing
the piano. Can I really be fined or prohibited for playing a
piano in my unit?

A: The playing of musical instruments in a condominium unit
can be problematic for unit owners due to the sounds and
vibrations it causes disturbing other unit owners, and
depending on the facts, does subject unit owners to fines
per Section 18.4(l) of the Illinois Condominium Property Act
or a lawsuit to prohibit the disturbance per the
declaration's remedies provision.

Most declarations and bylaws contain a provision that
prohibits conduct in a unit that amounts to a noxious or
offensive activity or disturbance to other unit owners in
the judgment of the board. Such provisions are routinely
used to prohibit disturbances from occurring in a unit.

The sounds and volume a musical instrument creates will play
a role as to whether the board finds that an unreasonable
disturbance is occurring. By way of analogy, the same
analysis would apply to a stereo system being used in a unit
-- the stereo used at a reasonable volume would not amount
to a nuisance, but a stereo on full volume certainly will.

Q: I live in a self-managed condominium association, and our
declaration prohibits units from being rented. Recently, a
unit owner moved out of a unit and put in a renter without
the knowledge of the board or the unit owners. What can the
board do to address this situation?

A: For violations of valid leasing restrictions, the board
has the power to levy fines and/or evict the tenant.

After notice and an opportunity to be heard, Section 18.4(l)
of the Condominium Property Act allows the board to levy a
fine for a unit owner's violation of the governing
documents.

Additionally, Sections 18(n) and 9.2 of the act allow a
condominium board to evict a tenant for a violation of the
governing documents.

Therefore, the board may pursue the process to evict the
tenant and also consider levying significant fines against
the unit owner for an intentional violation of the leasing
restrictions.

Q: I live in a town home community association. We incurred
damage to the interior of our town home unit due to leaking
from the exterior siding. Our town home association paid for
repairs to the exterior, however, the property manager
informed us that interior damage is our responsibility per
our declaration and that the association's insurance policy
will not cover the damage. Why is the association not
responsible for damages to the interior of our unit?

A: The Common Interest Community Association Act governs
town homes that are not subject to a condominium
association.

There is a dearth of insurance obligations contained in the
act other than the requirement for fidelity insurance for
association funds.

Therefore, the insurance obligations contained in the
declaration and bylaws of a community association will
dictate the extent of the association's insurance
obligations and liability.

Commonly, in a community association, the association's
declaration will say that the association is responsible for
exterior repairs and owners would be responsible for
interior damages, which is why it is recommended for owners
to have homeowners insurance for the contents in their unit.

Publication date: May 13, 2018

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Q: At our last annual meeting, the managing agent ran the
board election. Four of the five board members wanted to
step down after serving multiple terms, but only one unit
owner volunteered to run for the board even after much
discussion of how important it is to have a full board of
directors.

The managing agent then informed the board that the three
remaining board members were legally required to continue
serving on the board, which they agreed to do, albeit
unhappily. Was the managing agent correct, and what happens
one day if no will serve on the condominium board?

A: Service on a voluntary condominium association board of
directors is just that, voluntary -- not required by law. A
director can resign at any time. Practically speaking, it is
in the best interests of the association for existing board
members to continue to serve until replacement directors can
be found.

In the event that no unit owners are willing to serve on the
board of directors, there would be a breakdown of the
ability for the association to operate because there would
be no board of directors to make decisions. In such a case,
a receiver might have to be appointed to operate the
association, but this would be a significant expense that
unit owners would have to pay, and all owners would be
subject to the decisions of the receiver. Hopefully,
concerned and reasonable unit owners will eventually agree
to serve on the board.

Q: My uncle owns a condominium unit and has agreed to allow
me to live in his unit without paying any rent or
nonmonetary consideration. The condominium association's
governing documents have a 20 percent leasing limitation,
and the property manager advised me that because I am not a
first-degree relative, I cannot live in the unit because I
would be deemed a tenant and more than 20 percent of the
units are being leased.

However, there is nothing in the governing documents that
states extended family is deemed to be a tenant. Is the
manager correct?

A: The terms of a leasing restriction must be expressly
stated in the governing documents, which could define who is
deemed a tenant. An individual residing in a unit without
the payment or other nonmonetary consideration of rent is an
occupant, not necessarily a tenant. However, it is common
for many leasing restrictions to contain a definition
stating occupants that are not immediate family members are
deemed to be tenants.

In the absence of such language, and no facts to
substantiate rent or other consideration being paid, a mere
occupant will not be deemed a tenant.

Q: I own a unit in a condominium. I am wondering if a spouse
or partner of a director who has no ownership interest in a
unit can serve on the board of directors of a condominium
association, and what can be done if an individual is
already serving on the board who does not have an ownership
interest?

A: Section 18(a)(1) of the Illinois Condominium Property Act
requires individuals to be a unit owner to serve on the
board of directors, which means any ownership interest in
the unit. While some older condominium bylaws may state that
a spouse or nontitleholder of a unit may serve on the board
of directors, such provisions are inconsistent with the
Condominium Property Act and are therefore void.

If an individual who does not have a unit ownership interest
in a unit is serving on the board, that person should be
asked to resign from the board, should be excluded from
board decisions, and the board is entitled to seek an
official removal through the court system if needed.

Publication date: Jun 10, 2018

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Q: I live in a large condominium association. Our board of
directors publishes very sparse content in board meeting
minutes and does not communicate in our newsletter much
about large capital projects and association issues. Even
the annual budget cover letter did not mention capital
projects, although the budget itself did reflect the
expenditures. The board's position is that unit owners must
attend board meetings to hear what is going on.

Is it common practice for condominium associations to limit
written information to unit owners?

A: Like much in life, there is a balance in determining the
amount of written content in communications between
condominium boards and the unit owners. It is a best
practice for board meeting minutes to primarily contain
decisions of the board, not a summary of all discussions
that occur during a board meeting. However, it is a
recommended practice for a board to communicate with its
unit owners about large capital expenditure projects not
only for purposes of disclosure, but for purposes of
coordination and communication.

Attending board meetings either in person or via
technological means (if that is offered) is always
encouraged to hear firsthand board discussions concerning
board decisions. If unit owners feel communication is
lacking generally, unit owners should provide such feedback
to the board.

Q: I am on the board of a condominium association and
understand that board members have fiduciary obligations to
the unit owners; however, it is not clear to me the extent
of documents or information that must, or should, remain
confidential among board members. What guidelines are
suggested about confidentiality?

A: Based on concepts from the Condominium Act, and the
holdings from various Illinois cases, confidential
information includes, but is not limited to, the following
common categories: (i) discussions held in closed session of
the board, (ii) communications with association legal
counsel or professional consultants, (iii) documents or
information to which a unit owner is not entitled to inspect
per Section 19 of the Condominium Act, (iv) discussion of
threatened or pending litigation, (v) information involving
enforcement of the governing documents against a unit owner
or a unit owner's unpaid share of the common expenses, (vi)
information regarding the appointment, employment or
dismissal of an association employee, and (vii) information
involving agreements containing confidentiality
requirements.

Pursuant to Illinois case law, directors who breach their
fiduciary duties may be liable for damages individually. It
is a misunderstanding of the law for a board member to
believe he or she can disclose all board documents or
communications under the guise of "being transparent."

Publication date: Feb 9, 2020

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Q: Now that recreational cannabis is legal in Illinois, my
condo association is attempting to adopt a restriction to
our governing documents to prohibit the smoking of cannabis
in my unit. How can this be allowed if recreational cannabis
is now legal?

A: The Illinois Cannabis Regulation and Tax Act took effect
Jan. 1, legalizing the purchase and consumption of
recreational cannabis in Illinois for personal use.

However, that statute also expressly amended the Condominium
Act to allow condominiums to prohibit the smoking of
cannabis in condos by an amendment to the association's
declaration or bylaws, but not the consumption of cannabis
by other methods such as vaping or edibles.

While vaping and smoking appear to be similar methods of
consuming cannabis from a chemical process standpoint, they
differ meaningfully. Smoking entails the burning of a
substance (i.e., combustion), whereas vaping, in contrast,
is the inhalation or exhalation of water vapor produced by
heating -- not combusting -- substances such as cannabis or
nicotine.

Therefore, if the condominium declaration or bylaws is
properly amended by owners to prohibit the smoking of
cannabis in units and appurtenant limited common elements
such as balconies, that amendment is valid.

A condo owner who violates that restriction is subject to
available remedies by the board, which would include fines,
a declaratory lawsuit in the circuit court of Cook County
for an injunction order, and even possibly a forced judicial
sale if allowed in the governing documents.

Q: I am an owner in a condominium association trying to sell
my condo.

After I found a prospective purchaser, I learned the
association disclosed significant construction costs of a
project under consideration, even though the board has not
made a decision approving any repairs. The board has only
solicited bids for potential repairs.

Due to this disclosure, my prospective purchaser terminated
the contract, which cost me thousands of dollars in added
mortgage and assessment payments.

Did the association act improperly?

A: Section 22.1 of the Condominium Act requires a
condominium association, upon request, to disclose to a
prospective purchaser certain documents and information
relating to the association and the specific condo. Among
the disclosures, the association must provide a statement of
any capital expenditures anticipated by the association
within the current or succeeding two fiscal years.

While the word "anticipated" is not separately defined in
the Condominium Act, the word's plain meaning, supported by
case law, includes work that is likely or planned to be
completed. The standard is not what is approved by the
board. Thus, if the board felt the subject repairs are
anticipated to be done within the current or succeeding two
fiscal years, it was proper to disclose the anticipated
capital expenditures.

Q: I live in a suburban condominium association, and the
trend of deconversions is hitting our building. Our
condominium board is exploring the sale of our building to a
developer. Other than the City of Chicago, which increased
the required unit owner approval to 85%, have other
municipalities increased the required 75% unit owner
approval from the state law?

A: Section 15 of the Condominium Act allows 75% of the unit
owners of a condominium association that contains four or
more units to approve a sale of the building, which would be
binding. In 2019, Chicago increased that percentage to 85%
for four or more units, pursuant to its home rule legal
authority.

It has not been reported that municipalities other than
Chicago have increased the requisite unit owner approval to
approve a sale of condominium association property.

However, on Feb. 14, state Sen. Sarah Feigenholtz introduced
Senate Bill 3731, a proposal to revise the Condominium Act
to require 85% unit owner approval for a property with seven
or more units, with more restrictions.

If approved by the Illinois legislature and the governor,
the Condominium Act would increase the requisite unit owner
approval standard to 85% for all condominium associations of
seven or more units throughout Illinois.

CAPTION: Photo: Condo associations can amend bylaws to
restrict smoking recreational cannabis inside units. GETTY

CREDIT: Howard Dakoff

Publication date: Mar 8, 2020

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Q. I am on the board of directors of a self-managed
condominium association. There has been discussion among the
board over whether to mandate that condo owners must wear
face masks while in common areas. Does the board have the
authority to do so?

A. Pursuant to section 18.4(a) of the Condominium Act, the
board of directors is granted broad authority to administer
the common elements, which includes the power to adopt a
policy and/or rules and regulation mandating the use of face
masks in the common elements to protect the health, safety
and welfare of residents. A face mask mandate should contain
an exception for persons under the age of 2, or people with
medical conditions or disabilities that prevent them from
safely wearing a face mask.

It should be noted that many municipalities within Illinois
are requiring the use of face masks in public places,
especially where people cannot socially distance a minimum
of 6 feet. In that regard, elevators, hallways and other
common areas are small spaces where people cannot socially
distance a minimum of 6 feet. Further, many Illinois and
Chicago guidelines suggest or require the use of face masks
in different situations for residential buildings.

Q. I understand Chicago Mayor Lori Lightfoot imposed a
restriction, effective July 24, asking residential property
managers to limit guest entry to five per condo to avoid
indoor gatherings and parties. What can a condominium
association do to stop condo owners from bringing in more
than five guests?

A. It is well-established law via applicable statutes, and
the condominium declaration and bylaws, that the board of
directors is the governing body of its condominium
association and administers the association. Besides
notifying residents of applicable city and state
restrictions, the board has the power to adopt temporary
policies and rules to limit the number of guests per condo.
Similarly, the board may limit the size of groups using
shared amenities as it deems appropriate.

For violations of association policies or rules, the board
possesses remedies allowed under the Condominium Act, and
its declaration and bylaws. Those include levying fines or
filing a lawsuit for mandatory permanent injunction for
repeated violations.

Q. I live in a condominium association where the board
closed all the shared amenities since March relating to the
COVID-19 outbreak. I pay assessments for use of the common
elements and believe that if those amenities are temporarily
closed, I should receive a credit on my assessment
obligation. Am I entitled to an assessment credit?

A. Pursuant to section 18.4(a) of the Condominium Act, and
reciprocal provisions in condominium declarations and
bylaws, the board of directors administers the common
elements and can regulate the closure of such amenities.
Section 18(o) of the Condominium Act prohibits condominium
boards from forbearing assessments; thus, the board cannot
give credits to owners off their assessment obligation.

As a practical matter, the budget is based on estimated
fixed costs for the association items, including payroll,
insurance, and utilities, as well as maintenance, repair and
replacement of the common elements. Even a nominal savings
for temporarily closing an amenity does not invalidate the
budget as a whole, or change the assessment obligation of
owners. In fact, other line items could be more than the
budgeted amount, for instance, disinfecting regularly the
common elements related to COVID-19.

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Publication date: Aug 5, 2020

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Q: I am a new investor owner in a condominium association,
and the property management company advised me that there is
a rental processing fee I must pay to rent my condo. Can a
condominium association charge rental processing fees?

A: Section 18.4(h) of the Condominium Act allows boards to
adopt rules and regulations governing the association. For
condominium associations where renting of homes is allowed,
it is quite common for associations to have administrative
rules governing leasing.

Most of the time, those leasing rules contain required
paperwork to be filled out and a rental processing fee,
because the managing agent spends time related to record-
keeping of rentals in the association. Rental processing
fees are valid and enforceable.

Of note, Section 18(n) of the Condominium Act states that
all association governing documents, including rules and
regulations, must be incorporated into leases. Both owners
and tenants must comply with governing documents.

Q: I am a board member of a self-managed condominium
association. Like many condominium associations, we have
been conducting board meetings through virtual video
conferencing during the last few months. How do we handle
our annual meeting virtually, since condo owners have a
right to vote in person?

A: Given the continuation of COVID-19 for the foreseeable
future, many associations are grappling with how to handle
annual meetings virtually. It can be done.

Like board meetings, the notice of annual meeting will
contain virtual video (or telephone) conferencing
information and passwords. All annual meeting business will
be handled virtually except for the short portion of the
annual meeting when voting is opened to allow any condo
owners who wish to vote in person to be allowed to do so,
while practicing social distancing policies.

To greatly reduce the need for any in-person voting, boards
should consider either adopting absentee ballot rules, which
must be adopted at least 120 days before the annual meeting,
or if proxies are used, designate a specific proxy holder to
vote all proxies to eliminate a large number of owner-
appointed proxy holders from attending the open voting
portion of the meeting.

Q: Have there been any recent changes to Chicago's reopening
guidelines we should be aware of?

A: Yes; effective Oct. 1, Chicago revised its phase four
reopening guidelines. While these guidelines are
recommendations -- and not mandatory -- and most of the
revisions relate to the expanded reopening of businesses,
there were a few guidelines that could be applicable to
condominium associations.

Specifically, fitness centers have increased maximum group
size to 15 people or 40% of indoor capacity (whichever is
fewer); residential property managers are still encouraged
to limit guest entry to five people for single-member
household, such that the total indoor gatherings do not
exceed six people; and the maximum number of individuals for
out-of-school programs is increased from 10 to 15
individuals, if such groups are meeting in condominium
association common areas.

CAPTION: Photo: It is not unusual for condominium
associations to have administrative rules governing rentals
GETTY

CREDIT: Howard Dakoff

Publication date: Oct 11, 2020

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Q: I am a board member of a Chicago condominium association.
Between Gov. J.B. Pritzker's executive orders relating to
COVID-19 restrictions and Chicago's COVID-19 restrictions,
it is dizzying to keep track. What advice do you have for
condominium associations to stay updated?

A: The coronavirus pandemic is a moving target, and federal,
state and local guidelines continue to evolve and are
revised with some regularity. Unfortunately, that is the
nature of this new virus.

Chicago is currently in phase four (out of five), but the
restrictions within phase four have already been revised
more than once. Effective Oct. 30, the governor has re-
implemented certain restrictions for Chicago and many collar
counties due to the recent surge in COVID-19 cases. Those
restrictions include but are not limited to: prohibiting
indoor bar and restaurant service, closing outdoor dining at
11 p.m., prohibiting party buses and limiting meetings and
social gatherings to 25 guests, or 25% of overall room
capacity.

The Centers for Disease Control and Prevention, the federal
government, Illinois and Chicago all have dedicated COVID-19
websites with detailed information on current restrictions.
Check regularly so you're up to date on the most current
information.

Q: I am a tenant in a condominium. My landlord, the condo
owner, contacted me and advised me that the board of
directors levied a fine against me due to alleged
misconduct. What authority does a condominium board have to
levy a fine against a tenant?

A: A condominium board possesses strong remedies for a
tenant's violation of the association's governing documents,
including fines or eviction.

Pursuant to Section 18(n) of the Condominium Act, the
declaration, bylaws and rules and regulations of a
condominium association should be incorporated into rental
leases. Section 9.2 holds condo owners liable for the
actions of guests, occupants, invitees and tenants, and
they're also responsible for legal fees incurred while
enforcing those rules.

Section 18.4(l) allows a condo board to levy fines for a
violation of the governing documents, thus, a condominium
board may levy a fine against a homeowner for a tenant's
violation of the governing documents. The owner may then
recover such charges from the tenant through the lease. In
fact, Section 18(n) also allows a condominium board to file
an eviction lawsuit against a tenant for violations of the
governing documents.

Q: I am a condo owner whose condominium association is
seeking clarification on whether a board member term limit
in the condominium bylaws is enforceable?

A: Section 18 of the Condominium Act contains minimum
requirements for condominium bylaws. Section 18(a)(11)
expressly states that officers and board members may succeed
themselves. Section 2.1 of the Condominium Act states that
if any provision of a condominium governing document is
inconsistent with the Condominium Act, that provision is
void as a matter of public policy.

Therefore, any board member term limit contained in the
bylaws is void because that provision is inconsistent with
the Condominium Act.

Publication date: Nov 8, 2020

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Q: I live in a condominium association that has been self-
managed by the same three board members for the past 25
years. Because of the COVID-19 pandemic, the board did not
hold any open board meetings in 2020 (either in-person or by
electronic means), and the board distributed a purported
2021 budget without providing advanced notice to the owners
or adopting it at a board meeting. Is a condominium board
allowed to not hold board meetings or conduct business in
violation of the Condominium Act because of the pandemic?

A: While Section 18(a)(21) of the Condominium Act allows a
condominium board to take board action in emergency
situations with subsequent notice to condo owners, a
pandemic is not a valid basis for a board to not follow
corporate formalities required by the Condominium Act,
Illinois case law or the association's governing documents.

While most boards have deferred in-person board meetings
until further notice, those same boards have been holding
meetings by teleconference or video conference. A board that
refuses to comply with the requirements of the Condominium
Act, Illinois case law or the association's governing
documents subjects itself to liability for breach of duty.

A budget that was not properly adopted at a board meeting,
with at least 25 days of advanced notice to the residential
owners, is not valid. The last properly adopted budget
remains in effect until a new budget is properly adopted.

Q: I serve on a condominium board, and board members use
their personal email addresses for board business. Our issue
is that when board positions change, there is a loss of
those messages when members depart. Is there an alternative
system recommended for board members to allow for better
record keeping?

A: It is most common for board members to use their personal
email address for allowed board-related communications,
whether it is an existing email address or a newly created
one. Regardless, the board would not have access to board
members' personal emails after their board service is
completed.

It should be noted that archiving board members' emails is
not required by law or common practice. To the extent a
board wishes to archive board member email communications,
the most practical solution would be to create a generic
board email address and carbon copy that email address on
all communications. That way, a copy of all communications
will go to the board-controlled email address for archival
purposes.

Q: I am an owner in a condominium association and concerned
that our condominium board is not applying the rules and
regulations consistently to all owners. I recently learned
that a resident was given an exemption to a rule that
prohibited pets on elevators. The exemption affected the
possible sale of a residence, and the prospective buyer
decided not to purchase. Are such exemptions allowed?

A: Pursuant to applicable law, condominium boards may not
selectively enforce the association's governing documents,
including the rules and regulations, against some owners and
not others.

Condominium boards are required to apply rules reasonably
and uniformly, but they can make exemptions required by
federal law to accommodate something like a service animal
for a resident's disability.

For such an exemption, the resident must provide proper
documentation to the board pursuant to federal and state
law. In fact, not allowing an assistance animal exemption in
such a circumstance would expose the association and board
members to liability for failure to reasonably accommodate a
disability recognized under federal law.

CAPTION: Photo: While condo boards might have suspended in-
person meetings due to COVID-19, they still must have an
open meeting, even virtually, to pass a 2021 budget. GETTY

CREDIT: Howard Dakoff

Publication date: Jan 10, 2021

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Q. Can a condominium board require condo owners and building
residents to get vaccinated for COVID-19 to protect the
health, safety and welfare of the other residents?

A. Pursuant to section 18.4(a) of the Condominium Act, the
authority of a condominium board of directors is to provide
for the operation, care, upkeep, maintenance, replacement
and improvement of the common elements. There is no basis in
the Condominium Act, or Illinois law, that extends the
authority of a condominium board to require an owner or
resident to subject themselves to medical treatment or
vaccines to access and live in a condominium in the
association where they own or lease a residence.

There are many communicable viruses and diseases that exist
in society beyond COVID-19 that could be a health hazard to
other people, but a condominium board simply cannot mandate
vaccines. All building residents should remain vigilant and
wash hands regularly, use masks in the common elements and
social distance in the common areas, and are encouraged to
get vaccinated themselves.

Q. I live in a condominium and unfortunately discovered a
bed bug infestation in my home. After the abatement of the
bed bugs, and the purchase of a new bed, the board has
continued to subject my residence to regular bed bug
inspections. I understand there is a city ordinance that
requires bed bug abatement, but how long can a condominium
board continue to inspect my home for bed bugs?

A. Bed bug infestations are a serious health hazard given
the ease with which they can spread throughout a building
and the fact that bed bugs feed on human blood. A bed bedbug
infestation is a building-wide problem if not abated
immediately.

Pursuant to Chicago law, a property owner, which includes a
condominium association, must abate a bed bug infestation.
Pursuant to section 9.1(a) of the Condominium Act, condo
owners are responsible for the use and operation of their
homes, and pursuant to section 18.4(j) of the Condominium
Act, the board of directors may enter a residence to perform
maintenance on common elements or protect common elements
and other condos. If a condominium board has a reasonable
concern of the re-emergence of bed bugs, the board has the
ongoing right to inspect the condo and abate a continuing
bed bug infestation.

Q. I live in a ground-floor condominium with a concrete
patio where a skunk has made a new home. The smell of skunk
spray around my condo is odious. In response to my
complaints, the association has taken the position that it
is my responsibility to pay to have the skunk removed. Am I
responsible?

A. Patios are classified as limited common elements, and
under most condominium declarations, condo owners are
responsible for the maintenance, repair and replacement of
limited common elements. However, in this case, it is not
the patio that needs maintenance, repair or replacement, but
a rodent problem underneath the patio, which is classified
as part of the common elements.

Pursuant to section 18.4(a) of the Condominium Act, the
association is responsible for the maintenance, repair and
replacement of common elements as a common expense, which
includes the extermination costs.

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Publication date: Feb 25, 2021

----------------------------------------------------------------
  Q: I am a unit owner in a large high-rise condominium
building. Unit owners just learned the developer retained a
unit in our association where the laundry room facilities
are located and reserved easements relating to that unit.
The board and the property manager will not discuss the
issues because they state they are legally bound not to
discuss the laundry room issues due to a previous settlement
agreement with the developer. Some owners believe a
developer cannot own a unit where the laundry room is in a
condominium pursuant to the Condominium Act. What are your
thoughts?

A: For those buildings that have a laundry room, laundry
rooms are usually a part of the common elements. However, in
some buildings, a developer retains ownership of a unit with
the intention that such unit contain the laundry facilities
for unit owner use -- a commercial unit of sorts. Like all
other units, the unit has a percentage of interest, and the
owner pays assessments and real estate taxes.

While not ideal from a unit owner perspective, there is
nothing in the Condominium Act that prohibits the developer
from retaining ownership of a unit in a condominium
association with the intention of housing laundry facilities
for use by the unit owners.

Q: Our condominium board president sold his unit and moved
out of state, but has retained his position on the board
allegedly because a family member owns another unit in the
building.

A review of the deed to the unit has revealed that title is
held in his mother's name individually and that he has no
ownership interest in the unit.

Is this person allowed to remain on the board?

A: Neither state residency nor unit occupancy is a valid
criterion for serving on a condominium board in Illinois;
however, possessing an ownership interest in a unit is a
requirement.

Section 18(a)(1) of the Condominium Act states that the
directors shall be elected from among the unit owners.

Therefore, a son or a spouse of a unit owner who does not
possess an ownership interest in the unit may not serve on a
condominium board even if the bylaws state that a non-title-
holding person may serve on the board.

Q: I live in a condominium association, and our election is
coming up in a few weeks. The owner of our management
company owns a unit in our association and has decided to
run for the board. Is it a conflict of interest for the
owner of our management company to serve on our condominium
board, which would prevent him from serving?

A: While it may be a conflict of interest for a director to
have an interest in a company that has a contract with the
association not disclosed to the unit owners, that fact
alone does not preclude the director from being able to
serve on the board. It may, however, be a basis for
challenging the validity of the contract if the facts are
not disclosed or expose the board member to breach of
fiduciary duty depending on the facts of a situation.

Section 18(a)(16) of the Condominium Act deals with a
situation in which a board of directors enters into a
contract with a party in which a board member has a 25
percent or more interest in such corporation or partnership.
The board member must disclose the facts to the unit owners,
and the unit owners may initiate a vote to disapprove the
contract upon submitting a petition in compliance with
Section 18(a)(16).

Section 108.60 of the Illinois Not-for-Profit Corporation
Act also contains provisions governing contracts with board
members and conflicts of interest.

Inasmuch as the current management contract is already in
effect prior to the election of the person to the board, the
unit owners will not have a right to disapprove the signing
of the contract since it is already in effect.

The bigger question for the unit owners is whether they want
to elect a person to the board who is also the owner of the
association's management company.

Publication date: Oct 11, 2015

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Q. After living in a single-family home for many years, my
husband and I were tired of home maintenance. We hesitated
to buy a condo, because it seemed there were so many
problems with that lifestyle.

We have been here at our new condo in the western suburbs
for almost 2 1/2 years. It is wonderful. We have a good
board that keeps residents informed and listens to
suggestions. They keep the building up with regular
preventative maintenance.

This is to give you a view of a well-run condominium
association.

A. Thank you for your endorsement of condo living. For those
board members and managers who work tirelessly to enhance
their community, often without appreciation, this one is for
you.

Q. I recently encountered a situation where the owner of a
townhome was behind in his association fees and his bank
loan. He was in the process of selling his home by a short-
sale arrangement. He vacated the home and rented somewhere
else.

In the meantime, the association took possession of the
townhome and has rented it out for the last seven months. It
now has a buyer and the association has decided to keep the
rental proceeds. It will not credit the original owner with
any of the rent from the townhome toward the past
association dues.

Can the association take possession and rent out the
property? Is the association responsible for assessments
during this rental? Why wouldn't the board also credit the
past-due assessments for this delinquent owner?

A. If the townhome is part of a condo association, the board
has the statutory right to obtain judgment and rent the unit
for a period of 13 months to pay off indebtedness. The board
may apply the rents to the judgment, as well as current
assessments.

If the townhome is not located within a condo, the board may
still have the right to collect rents to satisfy a judgment.
The board may seek a court order for an assignment of rents
from the tenant to the association.

The owner is responsible for assessments until the unit is
sold. The association should credit rents to the amount of
the indebtedness to mitigate its damages.

Q. A new owner recently moved into our condo building. At
our introductory meeting with the board, he was given a copy
of our rules and regulations. He also was given a synopsis
of the rules, which state that no furnishings can be
delivered or remodeling done on weekends or legal holidays.

This individual then proceeded to disregard our rules by
moving in on a Saturday and Sunday and recently started
remodeling work on the weekend.

He was notified by our management company that he has been
fined and his reply was, "So what, go ahead and fine me."

Can this individual legally be made to move?

A. When buying into a condo, an individual makes a voluntary
decision to comply with association rules. This owner will
be subject to a fine and an eviction action if he does not
pay the fines. The board may also file an injunction suit to
stop him from violating the rules or force the sale of his
unit.

In the interim, management should bar his contractors from
entering the building. The board also should record a lien
against his unit for the amount of the fine and file suit to
stop the construction. An expensive legal bill will change
his attitude.

Benchmark report: The Institute of Real Estate Management
issues an annual Benchmarking Study of Condos, Coops and
PUDs that contains a comparative analysis of association
operating expenses, replacement reserves and assessment
increases. The latest study found the median total operating
expenses for all condo property types rose 14.5 percent in
2007 from 2006, with a median assessment of $228.80 per
unit.

Publication date: Oct 19, 2008

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Fannie Mae, the government-sponsored organization that makes
sufficient funds available to mortgage lenders by buying
mortgages from primary lenders and either holding them in
investment portfolios or reselling them as mortgage-backed
securities, has implemented new guidelines, effective March
1.

To facilitate sales of condo units, associations and their
boards and managers should be aware of the changes, which
include clarification on matters such as owner-occupancy
ratios and association insurance. The guidelines include
separate qualifications for new construction and newly
converted projects.

Fewer investor units allowed

Prior to these new guidelines, at least 51 percent of the
total units in new construction or newly converted attached
condo projects were required to be under contract to
individuals who use the home as their principal residence or
second home. New guidelines from Fannie Mae have increased
this pre-sale requirement to 70 percent of the total units
in the project or a particular phase that has been submitted
to the condo project, effectively decreasing the number of
permissible investor units for a Fannie Mae-approved
project.

Rules differ for existing projects

Established condo projects must have an owner-occupancy
ratio of at least 51 percent of the units if the loan is
secured by an investment property. Existing projects where
borrowers will either occupy the unit or use it as a second
home are not subject to owner-occupancy ratios.

Assessments scrutinized

Condo associations and their boards also must be aware of
guidelines concerning the level of assessment delinquencies.
As revised, no more than 15 percent of the total number of
units in a development can be more than 30 days past due in
assessment payments. This standard applies to both new
construction and established condominium projects. This
policy presents a dilemma for developers who do not pay the
full amount of assessments on unsold units, but also signals
condo directors to pay particular attention to association
assessment receivables.

Fidelity insurance covers the association from loss of funds
by those who handle association operating funds and
reserves. Fannie Mae guidelines state that fidelity
insurance is required for new condominium projects with 20
or more units. Illinois law is more stringent, requiring an
association with six or more dwelling units to maintain
fidelity insurance.

Insurance standards affected

Fannie Mae standards for hazard insurance presents an
interesting policy change. Prior guidelines required that
lenders verify that an association carries hazard insurance
to cover fixtures, equipment and other personal property
inside individual units. The new requirements state that an
individual borrower must obtain "walls-in-coverage," which
is commonly known as an "HO-6" policy. The exception to this
requirement arises when the lender confirms that the
association's policy provides the same interior-unit
coverage.

The Illinois Condominium Property Act does not require an
association to insure unit improvements and betterments. The
act only requires the association to obtain "bare walls"
coverage. New Fannie Mae guidelines will, essentially,
require a prospective unit owner to obtain an HO-6 policy
for no less than 20 percent of the unit's appraised value.
As a practical matter, all condo unit owners should have
HO-6 coverage.

Some projects won't qualify

Certain projects are ineligible for consideration by Fannie
Mae, including developments where the seller is offering
certain sale or financing incentives, such as builder-
developer contributions, sales concessions, or principal and
interest abatements. Ineligible projects also include those
where more than 20 percent of the total space in the project
is used for non-residential purposes, and where a single
entity -- either individual or investor group -- owns more
than 10 percent of the total units in the project.

Foreclosure classifications shift

Fannie Mae has considered the number of foreclosed units
that are now held by a foreclosing lender in a real-estate
owned, or REO classification. New Fannie Mae guidelines will
consider REO units to be an owner-occupied unit.

Publication date: May 3, 2009

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Q. I live in a condominium of 20 units. Our board
consistently runs illegal meetings and spends money without
agreement of the owners. Every expense over $1,000 should be
approved by the owners. We hold meetings without a quorum
present and without proper notice, which is 10 days.

We had an assessment increase even though the new budget did
not indicate that it was needed. We were told we need more
money because costs have gone up. After paying our bills,
the new budget provides that we will put the rest of the
money into reserves. What can we as individuals do to make
the board accountable?

A. Read the Illinois Condominium Property Act. You have some
misconceptions about the operations of a condominium.
Spending limitations requiring an owner vote only apply to
additions or alterations of the common elements. Under
Section 18.4(a) of the Condominium Act, expenses for
maintenance, repair and replacements do not require prior
unit owner approval.

The board of directors determines the budget and association
expenses. Unanimous approval of the owners is not required
for expenditures, because the directors make the business
decisions for the association. The board also may call a
meeting on no less than 48 hours' notice, although most
boards provide an advance schedule of future board meetings.

Section 9 of the act requires the association to provide an
itemized budget that includes an allocation for reserves.
Any excess income over expenditures should become part of
the association's reserve account.

Q. I had a buyer for my condominium, but a week before my
closing I was notified that the deal fell through. The
lender for the buyer determined that our bylaws did not
comply with FHA regulations because we have a right of first
refusal.

I complained to the management company and our president.
Management never responded and the president told me the
association would not amend the bylaws for one owner.

What can I do?

A. Your scenario is becoming all too familiar for unit
owners trying to sell. The unit owners can vote to amend the
bylaws to remove the right of first refusal. To initiate the
process, you should submit a petition signed by at least 20
percent of the owners calling for a vote.

Many condominium documents contain a right of first refusal,
but the great majority of associations never exercise that
right. To purchase a unit that is the subject of a proposed
sale, the board must approve the purchase, obtain the
approval of at least two-thirds of the owners and then
secure a mortgage for the purchase. Amendments to the
declaration and bylaws require the approval of at least two-
thirds to three-fourths of the unit owners. Amendments are
difficult to achieve.

The association should amend its documents to eliminate the
right of first refusal if the board has never exercised this
right.

Publication date: Aug 23, 2009

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Q. After two recent leases of units, a third of our
condominium building is now rental. Our condominium
documents do not disallow renting. Rental agents insist that
we forgo our procedures and rules to respond to renters'
needs.

What protections do owners have? Some of these renters have
created disturbances for the rest of the building.

How do we go about limiting the number of units rented in
the future? I am afraid the building we bought into as
owner-occupied is now unstable because of the rentals.

A. Tenants and their investor-owners are held to the same
standard of conduct as owner-occupied units.

There is a difference between responding to the needs of a
resident and enforcing the rules, particularly when
occupants of units engage in misconduct.

Under Section 18(n) of the Illinois Condominium Property
Act, the board of directors can terminate a lease when a
tenant consistently violates association rules. The process
begins with a 10-day lease termination notice followed by an
eviction lawsuit. The board may also levy a fine against the
owner for the unlawful actions of a tenant.

There are two basic alternatives to restrict leasing. The
board can limit the number of leased units by an amendment
to the declaration or a board rule.

An amendment is preferable because the change has been
approved by the ownership. A board leasing rule has been
upheld by the Illinois Appellate Court.

Leasing restrictions are difficult issues. Too many leases
affects property values and the ability of owners to obtain
mortgage financing.

Leasing restrictions also limit the availability of
purchasers in a challenging market.

Q. I live in a large building where every unit has its own
air-conditioning compressor on the roof. Owners are supposed
to maintain their compressors. Some equipment is original to
the building, while others have been replaced over the
years.

Recently, portions of the weatherproof conduit that protects
the electrical wires for the compressors has become worn
down. As a result, wires have been exposed to the elements.

Is the repair of the wires and the conduit the
responsibility of each owner, or is this an association
responsibility? Should the board hire a contractor to do the
repairs and bill the owner for the work, or is this a
building expense?

A. The board should hire a contractor to repair the
electrical wiring and, if justified by the declaration,
charge the owner. Exposed and damaged wiring creates a
safety hazard. It is the responsibility of the board to
undertake measures to assure safety of the entire building.

It appears that compressors are limited common elements.
This equipment is outside the boundaries of the units, but
serves only one unit. Review your declaration. Most
documents require the owner to pay all or part of limited
common element repairs.

Publication date: May 23, 2010

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Q. I live in a 50-unit, self-managed condominium project.
Board members are not experienced in competent building
operations. Common-area cleaning is performed by a resident
or a low-end cleaning service. Carpeting has never been
professionally cleaned. Painting projects are incomplete.
Parking lot repairs and lobby-renovation projects were
shoddy and required costly reworking.

Several board members oppose professional property
management, saying that owners' assessments would increase
substantially. Requests for timely financial statements have
been disregarded. What is the alternative for us who are
disappointed in the appearance of our property? Does the
board have an obligation to the owners to release periodic
certified statements?

A. The board is responsible for managing the property at the
same level as a professional property manager. A self-
managed condominium operation can work if the board is
organized and recognizes when it is necessary to obtain
independent advice and services.

Professional management gives the board the assurance
competent, experienced personnel are managing the
association and have the necessary contacts to retain
vendors at competitive prices.

In either case, the board must spend money to maintain the
property and preserve values. If the association has
deteriorated to the point you describe, it is worth the
expense to hire professional property management or retain
an experienced individual manager.

The Condominium Act requires the board to distribute an
annual summary of income and expenses. Owners may request
and inspect the financial books and records of the
association at any time.

Q. In December, one of our resident owners suddenly passed
away. At the time of his death, he was three months
delinquent in assessments. Almost immediately, his children
started living in the unit but also have failed to pay
assessments. They have told us that the owner's will has
been filed in probate court.

What course of action should we follow to make sure that the
obligations of the association are paid?

A. Conduct a title search to determine the party who owns
the unit. Search the probate court records to confirm that
an estate has been opened in the individual's name and
determine the date for filing claims with the estate. Record
a lien against the unit, and if an estate has been opened,
file a claim for assessments with the probate court. At some
point, there will be a hearing on claims that will take
place approximately six months from the date of the opening
of the probate estate.

While it may be necessary to file an eviction action, the
probate court will be the appropriate forum to resolve the
assessment claim. Review the declaration to determine
whether the association has any rights to question occupancy
of a deceased owner's unit.

Q. Our building was turned over to the owners in December.
Only 44 percent of the units have been sold. The developer
has rented most of the unsold units.

As the new board, we received our first financial report,
along with a proposed 2011 budget, from the management
company. The report showed that the developer has not paid
any assessments for his units and has used most of our
reserve fund. The attorney hired by the management company
sent a demand letter to the developer, but no other action
has been taken.

What is the board's responsibility and what action should we
take to ensure that there are funds to pay our bills?

A. Treat the developer as any other delinquent owner. If a
demand was sent to the developer for all of the unsold
units, the next step is to file an eviction action against
each of the developer units. If the association obtains a
judgment for delinquent assessments, the board should obtain
an assignment of rents from the tenants of the developer
units. The rent collections would satisfy the assessment
obligations.

The current board may consider a claim against the developer
board members to return reserve funds used for noncapital
expenditures.

Illustration Caption: Photo (color): The board of a self-
managed condominium project is responsible for managing the
property at the same level as a professional property
manager. TRIBUNE FILE PHOTO

Publication date: Feb 20, 2011

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Q. I own two units in a 119-unit loft condominium
conversion. Roughly 80 units have been sold, and the
remaining 39 units remain with the developer. Due to market
conditions, some of these units have been rented and others
remain vacant.

It has been three years since our declaration was recorded.
We have received notice from the management company,
representing the developer board, announcing a turnover
meeting for the end of the month.

Can the partners of the developer group vote at the election
for the new board? Do they get one vote in total or one vote
for each unit that is unsold? Are members of the developer
group allowed to serve on the new owner board? We are
concerned that the partners of the developer group will stay
in control and pursue the interests of the developer, rather
than the unit owners.

A. The members of the developer group may vote at the
turnover election for the units still owned by their legal
entity. The developer will vote the percentage of interest
assigned to each unsold unit.

Based on Section 18.2 of the Illinois Condominium Property
Act, the purpose of the turnover meeting is to elect a board
"from a majority of the unit owners other than the
developer." Representatives of the 80 sold units will hold a
majority of board seats. The developer may cast enough votes
to secure one or more seats, but will retain only a minority
position on the board.

Section 18.2 requires the developer to deliver certain
information and documents to the new board within 60 days
after the turnover meeting. The board should deliver this
information to a qualified engineer and accountant and press
any claims that these professionals find.

Q. I am the president of our 23-unit condominium
association. We installed a new roof five years ago. One of
the owners had to defer payment from his roof assessment.
Another owner lost his job and is eight months behind in
assessments. Our treasurer suggested a once-in-a-lifetime
deal, offering each owner $100 from our reserve fund as a
bonus for paying assessments timely. We are facing future
expenses for elevator repair and replacement of our hot
water heater.

Can we pay the owners from our reserve fund? Since we are
all volunteers, I do not want to break any rules.

A. The bonus idea is a nonstarter. There is no legal
authority for the board of directors to provide bonus
payments from reserves. The purpose of a reserve fund is to
finance repair and replacement of major portions of the
common elements, not to provide discounts to owners for
assessment payments.

Q. Our association treasurer is seven months behind in his
assessments, but he is still sitting on the board. Did he
sort of, automatically, forfeit the right to be on the board
by accruing such debt? Did he kind automatically resign from
the board, or can he be booted from this position by the
other two directors, thus creating a vacancy for another
person? Can I, as the president and the secretary, vote him
out of office without disclosing the reason to other owners,
or should we just ask him to resign?

A. The treasurer does not forfeit his board position, nor
did he automatically resign from the board. The treasurer
acts as the financial conscience of the association and
should set an example to owners by paying assessments in a
timely manner. If the treasurer cannot fulfill this basic
requirement, the individual should resign. The remaining
officers may request his resignation, and, if not tendered,
the board can vote at an open meeting to remove the
individual as an officer but not as a director. The unit
owners have the sole authority to remove an individual as a
board member by a vote of the ownership.

Publication date: Mar 20, 2011

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Q: As new condominium owners, my wife and I just received a
letter from our homeowners association announcing a $10
million to $12 million project to rebuild the entire facade.
This could mean a substantial assessment for us.

We purchased the unit last August. We had several
discussions with Realtors and our attorney about
investigating possible large assessments. We were told the
association had a substantial reserve and had no plans for
major renovations. I find it hard to believe that a project
of this magnitude would not have been in the planning stage
when we purchased a few months ago. We would not have bought
this unit if we had known about this project.

Do we have any right to take legal action?

A: You may have a claim if you requested disclosure
information under Section 22.1 of the Illinois Condominium
Property Act. Section 22.1 permits a buyer to obtain certain
information about association operations and finances. The
information includes a statement of anticipated capital
expenditures for the current and succeeding two fiscal years
and the amount of association reserves, including those
portions of the reserves earmarked for specific projects.

Anticipated capital expenditures include not only projects
formally adopted by the board but also those projects the
board communicates to the owners as future expenses.

Oral statements regarding future projects and assessments do
not provide a strong basis for a claim. Incorrect
information in a Section 22.1 disclosure statement may
provide facts for a claim against your seller and the board
of directors. The board is legally responsible for the
accuracy of the information contained in the disclosure
statement.

Q: I am an owner of two units in a 350-unit condominium
building. The building was last tuckpointed five years ago.
I rent both of these units. There has been frequent water
damage to units in the section of the building where my
units are located. My tenants have had to deal with water
coming into the unit. I requested reimbursement for
replacement of a linoleum floor that was ruined from water
infiltration. The board stated that I have to file a claim
with my insurance company to replace the floor. I do not
have insurance for this. I have liability insurance, but my
position is that I am relying upon the association's
insurance for any damage to the inside of my unit. How do I
resolve this dilemma?

A: You cannot rely upon the association's insurance to
recover damage to interior furnishings and decorating.

The association may be responsible for interior damage if
you can prove that the board has been negligent in
addressing continuous water infiltration from the exterior
of the building. Given the difficulty of proving a
negligence claim, however, you should have insurance to
cover interior damage to the unit in the form of HO-6
coverage and coverage for improvements and betterments to
the unit, including carpeting, floor and wall coverings.
Under Section 12 of the Illinois Condominium Property Act,
the board does not have the obligation to provide insurance
coverage for damage to unit decorating.

Q: The bylaws of our association state that members shall be
entitled to vote on a cumulative basis. Does that mean a
unit owner may direct five votes to one candidate, assuming
there are five board positions to fill, or does "cumulative
basis" refer to the fact that each owner's vote is given the
weight of his or her percentage of ownership, and the final
vote is based on a cumulative total of these percentages?

A: Your first alternative is correct. In a cumulative voting
format, the owner can multiply his or her percentage of vote
by the number of candidates to elect. Thus, when electing
five board members, a unit owner may cast five votes for one
candidate or allocate up to five votes for fewer than five
candidates.

Publication date: Jan 22, 2012

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Q: I am considering the purchase of a condominium for my
college student daughter to use as her residence instead of
paying for her off-campus rent. I do have concerns regarding
a seller's obligation to disclose pending or potential
special assessments and association lawsuits. I have no
reason to believe that there are problems in this particular
development, but I am unwilling to simply accept the word of
the listing agent or the owner. What is the best way for me
to verify this information?

A: The information you seek is available under Section 22.1
of the Illinois Condominium Property Act.

If requested by a purchaser, the board of directors of the
association must provide you with a list of information,
including anticipated capital expenditures for the current
and succeeding two years and the amount of association
reserves.

If the reserves are not sufficient to meet these near-term
expenses, you can expect an assessment increase or a special
assessment.

Section 22.1 also includes a disclosure statement of any
pending lawsuits or judgments in which the association is a
party.

You should also obtain a representation in the sales
contract from the seller that he or she is not paying a
special assessment and does not have notice of any future
special assessment by the association.

Q: Please help us determine if our condominium board of
directors is being unreasonable and power hungry.

My husband and I own a town house unit in a northern suburb.
We are required to submit a copy of a lease since we rent
the unit we bought in 2009. This rule has been in place
since October 2010.

When we did not submit the lease after several letters
asking for it, the association served us with a notice of
termination of right of possession, then fined us over $350.
They have not let us know why this amount is being charged,
but we suspect it is for attorneys' fees. My husband says
the board has no right to fine us since we ultimately did
submit the lease.

Does the board have the legal right to demand the fine? What
are the repercussions if we do not pay the fine?

A: Owners must comply with association rules. As a
condominium owner, you are required under Section 18(n) of
the Illinois Condominium Property Act to submit a copy of
the lease not later than the date of tenant occupancy or 10
days after the lease was signed, whichever occurs first.

If you did not submit the lease after the first request from
the association, you are subject to sanctions the board may
impose for rules violations. The fine is reasonable. The
fine may relate to legal fees or simply a charge for
noncompliance.

If you refuse to pay this charge, it will become a lien
against your unit in the same manner as a delinquent
assessment.

Q: If the unit owners in a 100-plus unit condominium
development are unhappy with the president of the
association, is it possible to recall that individual, and,
if so, what procedure is required and on what basis can this
be accomplished?

A: Unit owners may remove a director from that position by
the required vote of the total ownership held at a special
meeting of the unit owners. The required vote to remove the
board member is a standard provision in association bylaws.
Most documents require a two-thirds vote of the entire
ownership to remove a board member. You will have to review
the provision to determine whether a director is subject to
removal only for cause or the owners have the right to
remove the individual without showing cause for this action.

Publication date: Mar 18, 2012

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  Q: I purchased a condominium in Chicago three years ago
that I thought was at the bottom of the market. Although
single at the time, I am getting married and hope to start a
family. Both of these aren't feasible in my one-bedroom
unit.

My condominium board passed an amendment setting a cap of 30
percent of the units for rentals. The board president pushed
the amendment and by some crazy miracle the board says that
75 percent of the owners approved this measure. The
amendment also states that owners can rent the unit for a
maximum of two years unless they were already renting out
their unit. If I sell my unit, I will likely take a
substantial loss. If I am able to rent the unit, I can break
even on my mortgage.

The amendment stated that owners could apply for a hardship
exception. My hardship request was denied by the board.

What do I do? Do I have any legal recourse?

A: Other than verifying the results of the amendment, it
will be difficult to challenge the amendment. Leasing
amendments are presumed to be valid because they have been
approved by the ownership. Rental limitations or caps,
particularly at the limit in your association, are more
common. The amendment was adopted at a meeting or by the
written consent of the ownership.

Owners have different interests. You want to sell your unit.
Other owners may wish to maintain the unit as their
residence and fear the consequences of increasing rentals.
In today's times, it is not unusual for owners to sell their
units at a price less than they paid for the residence. Most
boards will not grant hardship exceptions because of owner
difficulty in selling a unit or the price the owner may have
to accept on a sale.

Q: Nine of 13 units in our condominium association are in
foreclosure. There are no association board members because
the board members are part of the foreclosure group. Our
management company came up with the suggestion of creating a
special assessment of $2,000 for each unit. No one is happy
about this. In the past, we have not seen services for the
assessments we have paid.

Is the management company's suggestion legal to create a
special assessment without the owner's consent?

A: Management cannot impose a special assessment on the
ownership unless the levy has been approved by the board
and, in some cases, the unit ownership. Management has made
a constructive suggestion to raise funds sufficient to
provide the services necessary for the association.

With most of the units in foreclosure, perhaps the best step
for the owners is to sell their units to a single buyer who
may de-convert the property to an apartment building or
rehabilitate and resell the units.

Q: Our condominium association will be levying a special
assessment for major repairs to the roof. The assessment
will average $10,000 per unit and must be paid in full
within six months.

Some of our unit owners are retired and on fixed incomes.
They may not be able to meet this financial commitment. A
few who disagree with the idea of a new roof are planning to
opt out of their special assessment payment.

Can the board reassess the amount not paid by the defaulting
owners to those in compliance in order to make up the
difference? Can the board take legal action to force the
dissenting owners to pay their share?

A: If a special assessment has been properly adopted, owners
may not opt out of that obligation. Owners who refuse to pay
the assessment will force the board to take legal action to
collect this amount by an eviction action. Delinquent
special assessments may force the board to make up the
shortfall from association operating or reserve funds, which
eventually will result in higher assessments.

The board may resolve this dilemma by permitting owners to
pay the assessment by installments, possibly through the
vehicle of an association loan. With current interest rates,
the loan alternative may reduce the amount of the monthly
payment for all unit owners.

Publication date: Oct 28, 2012

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  Q: I own and occupy an office condominium in a
professional building. One of the unit owners smokes in his
unit. The smoke comes into the hallway and into adjacent
units. Needless to say, it is nauseating, bothersome and
unacceptable.

The board, of which I am a member, has contacted this
individual privately to stop smoking, but the individual
continues with his habit. Local authorities will not take
action unless they see the individual with a cigarette in
his hand. The individual says he will continue to smoke
whenever he wants in his unit.

What is the best way to stop this violation of a city
ordinance and the Illinois no-smoking act?

A: The Smoke-free Illinois Act covers common areas and not
the condominium unit itself. With the required unit owner
approval, the board of directors can amend the declaration
and bylaws to prohibit smoking within the units. Absent an
amendment approved by the owners, the board can adopt rules
requiring the owner to take steps to minimize smoke
transmission from the unit into other portions of the
property.

Given that this is an office condominium, the board should
consult a mechanical engineer or HVAC contractor for the
best means to minimize smoke transmission.

The board can take more effective action than local law
enforcement authorities.

Q: I have a water leak that appears to be caused by the unit
owner above my unit.

After six months, the repair to the upstairs unit has not
been completed, which prohibits me from using a portion of
my unit.

Our bylaws appear to state that no unit owner can sue any
other unit owner, no unit owner can sue the management
company and no unit owner can sue the board.

It seems to me that the board can force a unit owner to make
repairs at the owner's cost, but if the board does not order
that action, what is my alternative?

A: Based on Section 9.1 of the Illinois Condominium Property
Act, one unit owner may sue another for damages to a unit
arising from the use and occupancy of another unit.

A unit owner cannot sue the management company because
owners do not have a direct contractual relationship with
the managing agent. The board and the management company are
direct parties to a contract. If you contend that the board
has not maintained the property, you may have a negligence
claim against the directors.

Your ultimate remedy is to pursue the upstairs neighbor
directly by litigation, if necessary.

Q: Our bylaws state that the powers of the board include
maintenance and payment for items such as landscaping,
gardening, painting and cleaning, as well as tuck-pointing,
but not including the windows appurtenant to the units and
the interior surfaces of the windows, which owners shall
paint, clean, decorate, maintain and repair. The bylaws
define limited common elements as a portion of the common
elements designated in the declaration as being reserved for
the use of certain units to the exclusion of other units.

Past boards have assessed exterior window repair costs to
the owners whose units contain the windows and, therefore,
had exclusive use of them.

One owner is asserting that the cost to repair his windows
should be assessed to all the owners as a common element
expense.

A: The cost to repair windows should be borne by individual
unit owners. Windows are limited common elements. Section
9(e) of the Condominium Property Act states that the
declaration and bylaws may allocate costs for limited common
elements directly to the owners who benefit from these
components.

Publication date: Nov 11, 2012

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  Q. I live in a condominium association, and our board
president is delinquent in his assessments, totaling
thousands of dollars. The annual meeting for elections is in
November, and he is already campaigning for votes. Is it
true that if a board president is significantly behind in
his assessments that this is a disqualifier for re-running
for the board?

A. An assessment delinquency is not a disqualifier from
serving or running for the board. Pursuant to Section 18 of
the Condominium Act, the only criterion for being eligible
to serve on the board is unit ownership. If a candidate is
delinquent on assessments, that unit owner is subject to the
association's remedies to collect delinquent assessments.

Section 18(b)(1) of the Condominium Act states that unit
owners who are in arrears of assessments more than 60 days
should not be counted for purposes of determining a quorum
relating to a vote on an amendment to the association's
bylaws.

Q. I live in a community association in which each owner
mails or delivers a check for the monthly assessments, with
a due date on the first of the month. A late fee is assessed
if payment is received after the 10th of the month. We are
changing our banking partner soon and will be creating an
automatic payment option for owners to pay their
assessments. Can the board mandate owners sign up for
automatic payments to pay their assessments?

A. While a board has broad powers to adopt rules and
regulations relating to the administration of the
association, there is no basis in the law for the board to
mandate a specific method of payment for assessments. It
simply is too draconian and would likely be held
unenforceable by a court.

In today's world, with various technology, there are a
variety of methods to pay assessments, which include checks,
debit systems, electronic transfer payments, credit cards
and cash. Mandating that only one method can be used and
subjecting owners to remedies for a violation of such a rule
is not recommended.

Still, an association is free to strongly encourage owners
to use an automatic method of payment and advise owners of
the benefits.

Q. About a month ago, I requested seven years' worth of
board meeting minutes pursuant to the Common Interest
Community Association Act. The property manager has delayed
delivering the minutes, stating the minutes must be redacted
of sensitive information and has also stated that as a unit
owner I am responsible for the cost of retrieval of the
board meeting minutes. Can management do that?

A. Section 1-30 of the Common Interest Community Association
Act governs board obligations relating to records in
addition to the association's governing documents. Owners
are entitled, among other documents, to seven years' worth
of minutes of meetings of the board. The association may
charge a reasonable fee for the cost of retrieving and
copying records properly requested.

As far as redacting portions of the minutes, there is no
legal basis for the manager to redact any portion of board
meeting minutes approved by the board. Owners are entitled
to a copy of the approved board meeting minutes, period. If
there is information that is so sensitive that would warrant
not being disclosed to the owners, it should not have been
approved as part of the board minutes.

Publication date: Oct 18, 2015

---------------------------------------------------------------
  Q. Our condo association allows dogs up to a certain
weight and count. We also have leased units in the building
and we, the board, want to restrict renters from keeping
dogs but allow unit owners to keep dogs in their units. Can
we do this by changing the rules and regulations by board
vote?

A. The board may not adopt one set of rules that relates to
unit owners and another that relates to renters. The
declaration, bylaws and rules and regulations of a
condominium association must be uniformly applied to the
residents of the building. Section 18(b)(2) of the
Condominium Property Act states that a condominium
association shall have one class of membership. In the
context of your inquiry, this provision means the board may
not allow dogs for unit owners but prohibit dogs for
renters. In other words, the board is barking up the wrong
tree.

Q. There are a few unit owners in our condominium
association who have made small improvements to the lobby on
their own. We added a painting and moved a picture to a spot
where it looks much nicer. Most of our board is made up of
off-site unit owners. The board of directors is not allowing
our group to continue upgrading the lobby. Is there anywhere
in the Condominium Act that explains the board of directors'
authority and duties?

A. The board is within its authority to prohibit unit owners
from modifying the common elements (such as the lobby)
without board approval. Section 18.4(a) of the Condominium
Property Act grants the board the duty and authority to
provide for the operation, care, upkeep, maintenance,
replacement and improvement of the common elements. Section
18 in general discusses the board's authority and duties.
The group of unit owners remodeling the lobby is best served
to discuss with the board suggestions for lobby redecoration
rather than implementing redecorating without board
approval. Modifying a common element without board approval
could result in a fine being levied by the board for
violations of the governing documents.

Q. Our association adopted a rental restriction amendment
that limits the number of units that can be rented (two of
seven total). We have a new owner who lived in the unit for
a couple of months then moved out of the unit. A few months
later a "roommate" appeared and is now living in that unit.
The roommate pays rent, but there is no formal written
lease. We believe this is not in the spirit of the rental
policy and is unfair to the other owners who must abide by
the rental restrictions. What is the fine line with
roommates in terms of the law?

A. All unit owners and their guests, tenants and occupants
must comply with the association's governing documents,
including the leasing restrictions. There is no exception
for roommates who have an oral lease with a unit owner to
not comply with leasing restrictions. Violations of the
leasing restrictions -- such as a unit being leased in
excess of the number allowed -- is actionable. Pursuant to
sections 9.2, 18.4(l) and 18(n) of the Condominium Act, the
board may fine the unit owner for the violation of the
rental restriction, evict the tenant and recover its
attorneys' fees and costs for enforcing the governing
documents.

Publication date: Feb 3, 2013

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  Q: I live in a condominium association. For well over 20
years, unit owners have received the proposed budget with
detailed information supporting each line item. Our new
management company advised the board they should send out
only an executive summary of the budget to the unit owners,
which lists the amount for each line item, but no details.
Is our new management company's position supported by the
Condominium Act?

A: Section 18(a)(6) of the Condominium Act states that each
unit owner shall receive a copy of the proposed budget,
including which portions are intended for reserves, capital
expenditures or payment of real estate taxes, at least 30
days prior to its adoption. Thus, as long as a board
provides the total amount for each line item and the
foregoing information, it complies with the Condominium Act.

Notwithstanding the requirement of the Condominium Act, if a
board has engaged in a practice of providing extra
information to unit owners for 20 years, the board may be
best served to provide such information, otherwise, board
members could find themselves replaced with board members
who will provide such information.

Q: I am a director on a condominium board. The board wants
to completely update our declaration and bylaws. Can we
simply revise and record a new declaration and bylaws to
replace them as we see fit, or is there some other process
we must follow?

A: It is common for associations with older declarations to
have them amended and restated to bring them into compliance
with the Condominium Act. Section 27(b)(1) allows two-thirds
of the members of the board to approve the recording of an
amended and restated declaration to bring it into compliance
with the Condominium Act.

However, if the board desires to revise provisions of the
declaration above and beyond requirements of the Condominium
Act (such as adopting new leasing restrictions, revising
maintenance obligations, adding new provisions altogether,
etc.), then unit-owner approval is required, which, per
Section 27(a) of the Condominium Act, cannot be less than
two-thirds of the unit owners or more than 75 percent of the
unit owners.

Q: I am a director on our residential co-op board. The
corporation's annual budget was approved at our last board
meeting. However, I did not vote to approve the budget, and
our secretary refuses to incorporate my reasons into the
meeting minutes. Am I entitled to demand my reasons be
included in the minutes?

A: The standard for the contents of board meeting minutes is
set out in Robert's Rules of Order. In sum, Robert's Rules
dictates that board meeting minutes should contain the
record of what was done and not a record of what was stated.

Nonetheless, the best practice for board meeting minutes is
to also provide some level of detail concerning the
administration of a community association or residential co-
op, which generally does not include each board member's
reason for voting for or against each action item.
Ultimately, meeting minutes are approved by a majority of
the board, thus, the majority of the board may make a motion
to modify, and approve, minutes to include a director's
reasoning if they so choose.

Publication date: Dec 15, 2013

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  Q: I live in a condominium with a five-person board. Over
the past several months, three board members have resigned.
When the board tried to appoint directors to fill the
vacancies, at least 25 percent of the unit owners petitioned
the board to call an election to fill the vacancies per the
Condominium Act.

The management company sent notice to the unit owners to
call the election, but it is now trying to coerce unit
owners to rescind their signatures to the petition to avoid
holding the meeting. Simultaneously, the management company
requested that unit owners return completed proxies on the
same date as the candidate nominations are due, thus
candidates would not yet be known. Thoughts?

A: Notwithstanding alleged coercion against unit owners to
rescind their petition signatures, once the petition to call
a meeting was submitted to the board by the requisite number
of unit owners (minimum of 20 percent per the Condominium
Act), the board is obligated to call and hold such meeting.

As far as proxies go, a proxy is a unit owner's assignment
of his or her right to vote to a proxy holder. A request
that proxies be delivered to the managing agent is
nonbinding because proxies may be delivered to the proxy
holder to take to the meeting.

Though the management company or board may have requested
that proxies be returned to it, there is no obligation to do
so. Further, a unit owner can handwrite candidates' names
that he or she wishes to state a preference to vote for as
direction for the proxy holder.

Q: Because of the recent Palm v. 2800 Lake Shore Drive (Palm
II) ruling, our property manager has informed the board that
all decisions -- even authorization for minor repairs of
$150 or less -- must be voted on at open board meetings. We
live in an old condominium association where small repairs
are common. Is our manager correct?

A: As a general statement of law, all votes of the board of
directors must occur at an open board meeting. However, the
Palm II case expressly held that if the governing documents
allow, the board may delegate decision-making authority to
the managing agent. The board should consider adopting a
standing resolution to address such small expenditures.

Further, most property-management contracts contain an
expenditure limit that allows the property manager to make
expenditures up to a certain dollar amount without approval
of the board.

The limit depends on the size of the building; however, it
is usually no less than $1,500. Thus, in reality,
authorization to make small expenditures should not be a
problem.

Q: A shareholder in our residential cooperative objects to
publishing the exact vote totals in the minutes of the
annual meeting relating to the board election.

She believes it makes the losing candidates feel bad. What
is the appropriate practice?

A: Notwithstanding the possible subjective feelings of the
losing candidates, it is the best practice, and recommended,
that vote totals for board elections be reflected in the
annual meeting minutes of all community associations, which
include residential cooperatives and condominiums.

It is important to document the official election results
for future reference.

As a practical matter, owners in condominium and community
associations (and usually, shareholders in cooperatives per
their proprietary lease) are entitled by statute to review
election ballots and proxies unless the election is held by
secret ballot, so there is no valid privacy reason to hide
the election results.

Publication date: Jul 13, 2014

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  Q: I live in a relatively new condominium association, and
the association and its board are just getting their feet
under them. Recently, we had meet-the-candidates forums for
our upcoming annual election and the election itself. In
both meetings, some residents brought open containers of
alcohol. Are there formal restrictions in Illinois that
prevent alcohol from being consumed at association
functions?

A: Jokingly, some unit owners might say alcohol is necessary
to tolerate association gatherings.

But there are no restrictions in Illinois about the
consumption of alcohol on private property other than
individuals must be of legal drinking age. In fact, some
associations serve wine and cheese to entice unit owners to
attend association events.

If the board wants, it could adopt rules to prevent alcohol
at elections, which would be valid and enforceable.

Q: I am a relatively new owner of a condominium . I am
neither happy nor confident with the manner in which our
building is being administered by the board for a variety of
reasons, such as failure to maintain the property in an
appropriate manner, not enforcing rules and regulations,
etc. Short of running for the board of directors, what
rights do unit owners have regarding how the property is
being managed?

A: Running for the board or voting for board candidates who
share your views is the only way in which to participate in
decisions to administer the property.

The Condominium Act and most condominium declarations grant
the board the sole authority to administer association
property. There is no basis under Illinois law for a group
of unit owners to dictate how the board must administer the
property.

If there are no opportunities to serve on a committee
regarding maintenance, and the board refuses to engage in a
dialogue with unit owners of a different view, unit owners
holding 20 percent of the ownership have the right to call
an owner meeting for the purpose of removing directors. Of
course, the hurdle in doing so is that most condominium
declarations require two-thirds of unit owners to approve
removing directors from the board, which is a difficult
threshold to achieve.

Q: I am a member of the board of directors of my community
association. I am also a real estate agent and have
discovered that our management company charges exorbitant
fees to purchasers and sellers of units in our community,
but I was told not to worry because such fees are waived for
anyone who has ever served on the board. Is this a form of
compensation that is prohibited?

A: Any remuneration paid to board members in terms of
payments or a waiver to pay fees or charges assessed to all
owners is compensation for serving on the board. Most
association bylaws state that board members are not entitled
to receive compensation for serving on the board unless such
compensation is approved by the owners. So if owners haven't
approved such a policy, it is prohibited.

Publication date: Jan 25, 2015

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  Q: I have a repeated problem with ants coming into my
condominium unit. I have hired an exterminator several times
to eliminate the ants, which disappear for three to six
months and then return. I have requested the board fumigate
the common elements to prevent recurring problems. My unit
is on the fifth floor, so I doubt my unit is the source of
the ants. Isn't this the board's responsibility?

A: A recurring insect infestation in a condominium building
is the board's responsibility to address because the insects
invariably emanate from, or are at least partially contained
within, the common elements. The spread of an insect
infestation needs to be prevented.

The board should retain an exterminator to investigate the
issue and fumigate the affected common elements.

Be advised that if the association's exterminator determines
that the source of the infestation emanated from a unit,
depending on the specific declaration and bylaws provisions,
the board is most likely entitled to assess the
extermination costs back to the unit owner.

Q: I live in a town house association, and because of water
infiltration into my home, I retained a certified roofing
contractor to inspect my roof. The contractor said the roof
shingles need to replaced. I sent a copy of the report to
our board and asked them to replace the shingles. But a year
and a half later, no work has been completed, and the board
has not responded. Is the association responsible to pay for
the roof work and any damages inside my unit?

A: In a town house association, the responsibility to
maintain, repair and replace a roof is articulated in that
association's specific declaration and bylaws. Sometimes it
is the association's responsibility, but many times it is
the unit owner's responsibility, subject to board approval
to maintain uniformity of appearance.

If, in fact, the declaration states that maintenance, repair
and replacement of town house roofs are an association's
responsibility, the board is obligated to replace the
shingles and may have liability because of its failure
and/or refusal to address the issue of ongoing water
infiltration. Of course, if the declaration states that roof
repairs are an owner's responsibility, the board will have
no such obligation or potential liability.

Q: I own a town house, and our association recently changed
management companies. The new management company sent a
letter to owners instructing them not to send payment to the
previous management company and advised the owners they
would receive a monthly invoice with instructions on how to
pay.

I never received a single invoice and eventually received
notice from a law firm that my unit is delinquent in
assessments, and that a lawsuit has been filed. While the
board is willing to waive the late fees, they say that I am
responsible for legal fees. Do I have to pay the legal fees
even though I never received the invoice?

A: The obligation to pay assessments is contained in the
declaration and bylaws and is an affirmative obligation upon
owners. As such, while managing agents and boards do send
monthly invoices or provide coupon books for payment, it is
an obligation of an owner to pay monthly assessments
regardless of the receipt of an invoice.

As a legal matter, owners are responsible for legal fees
incurred for collection of delinquent assessments. While not
required to do so, it is within the discretion of the board
to waive the legal fees based on the facts of a particular
matter.

Publication date: Feb 1, 2015

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  Q. I live in a condominium association. To raise
additional revenue without adopting a special assessment,
our board of directors declared that it would charge a 13th
assessment payment notwithstanding such a 13th assessment is
not allowed per bylaws or even contemplated in the budget.
The board threatened to levy a significant fine if this
payment is not made timely. Can the board enforce this extra
assessment payment?

A. There is no basis in Illinois condominium law for a board
to mandate an extra month's assessment payment to increase
revenue. The board is only entitled to collect each unit
owner's pro rata share of the total approved budget divided
into the number of payments required per the bylaws or adopt
a special assessment to raise extra revenue not contemplated
in the budget.

The board must follow the procedures under Section 18 of the
Condominium Act to properly adopt a special assessment.

Thus, the board is best served to follow proper procedures
to collect extra revenue it needs by properly adopting a
special assessment rather than attempting to collect an
improper special assessment masquerading as a 13th month's
assessment.

Q. The board of directors of my condo association adopted a
very large special assessment to which my unit share is just
over $13,000. The board has demanded payment of the special
assessment in one lump sum in November. Are there any
Illinois laws that put a cap on the amount of money an
association may assess unit owners on an annual basis?

A. There are no laws in Illinois that restrict the amount of
money an association may adopt as a special assessment;
however, under certain circumstances, the unit owners may
reject a special assessment pursuant to Section 18(a)(9) of
the Condominium Act.

In sum, if the amount of regular and special assessments is
more than 115 percent of the sum of regular and special
assessments payable during the preceding fiscal year, 20
percent of the unit owner votes may deliver within 14 days
after the adoption of a special assessment a petition
demanding a unit owner meeting to reject the special
assessment, to be called within 30 days of the date of
delivery of the petition. Unless a majority of the unit
owner votes in the association reject the special assessment
at such meeting, the special assessment is ratified.

Palm II update. As readers of this column may recall from
last year, the Illinois Appellate Court published a decision
on May 2, 2014, about Palm II v. 2800 Lake Shore Drive
Condominium Association. Palm II greatly affects how
condominium board members communicate with each other and
make decisions.

Since Palm II became state law, the Illinois legislature has
introduced amendments to the Condominium Act to address
portions of the various draconian rulings held in the Palm
II decision. While several House bills never made it out of
the Judiciary Committee, one bill is going through the
legislative process that would revise a portion of the
ruling in Palm II, if it becomes law.

House Bill 2641 proposes to amend the Condominium Act by
stipulating that the bylaws of a condominium association
shall provide for the ratification and confirmation by the
board of directors of actions taken by the board outside of
a properly noticed meeting in response to an emergency.
Under a strict constructionist reading of the Palm II case,
even in the event of an emergency, a quorum of the board
cannot discuss association business or make a decision
without giving 48 hours' notice to the unit owners, which
would be nonsensical in the event of a burst water pipe or
fire, for example.

As of May 22, there have been several proposed floor
amendments to the legislation, and the legislation has been
referred back to the Rules Committee.

Publication date: Jun 7, 2015

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  Q: I live in a large condominium complex that has a den of
skunks buried into the ground at the edge of the sidewalk
leading to the back entrance of our building. At least seven
skunks, one adult and six youngsters, have been seen at
night walking around and even walking on ground-floor unit
patios. What responsibility does the association have to get
rid of them?

A: Skunk spray stinks and ignoring a known skunk problem
stinks also. Section 18.4(a) of the Condominium Act grants
the board the authority and obligation to maintain, repair
and replace the common elements.

The relocation of unwelcome animals and extermination of
insects and unwanted rodents from the common elements is the
responsibility of the board of directors as a common
expense. An exterminator with proper training should be
called as soon as possible to prevent unit owners and their
pets from being skunked.

Q: I live in a condominium association and receive notice of
meetings throughout the year from the management company.
Sometimes the meeting notices are 10 days in advance and
sometimes only 48 hours in advance. Why the difference in
notice periods?

A: Section 18 of the Condominium Act and all condominium
bylaws contain different notice provisions for different
types of meetings.

Board meeting notices are used for the purpose of calling a
board meeting where the board conducts association business.

Notices of board meetings must be delivered to the unit
owners with at least 48 hours' notice and posted
conspicuously in the common elements. There is no maximum
number of days in advance a board meeting must be noticed,
which is why some associations set a yearly schedule of
board meetings.

On the other hand, the required notice period to call a unit
owner meeting is no less than 10 days and no more than 30
days' advance notice. Examples of a meeting of the unit
owners are annual meetings to elect directors, meetings to
amend the condominium instruments and meetings called to
reject special assessments and budgets in excess of 115
percent of the previous year's assessments.

Q: In my condominium association, the treasurer just
resigned. I was curious to understand what the procedures
are to replace the treasurer position with another board
member and replacing the board vacancy altogether. Does the
president have this authority or is it a board decision?

A: The procedure to reassign the position of treasurer is
different than filling the vacant board position, but in
both circumstances, it is a board decision, not a
president's decision.

Unless a condominium association's bylaws contain a
different standard, the board of directors, by a majority
vote of quorum, can nominate and approve any currently
serving director to fill the position of an officer
(president, secretary and treasurer) until the next annual
meeting. In fact, the board, by majority vote of quorum, may
remove an officer from a position.

As far as filling board vacancies, Section 18(a)(13) of the
Condominium Act states that the vacancy may be filled in one
of two ways: either a two-thirds vote of the remaining
members of the board may fill the vacancy until the next
annual meeting; or within 30 days after a petition of 20
percent of the unit owners requesting a unit owner meeting
to fill the board vacancy, a meeting of the unit owners
shall be called to fill the board vacancy for the balance of
the director's term.

Q: I live in a midrise condominium association. The use of
balconies as a dog run is prohibited under the association's
rules and regulations. To monitor violations that are
occurring, the board president has hinted he would like to
use a drone to videotape unit owners' use of balconies as a
dog run. Can the board actually do this?

A: The use of video footage to monitor common element
lobbies, stairwells and hallways, and sometimes limited
common elements areas, is common in condominium
associations; however, the use of drones to record a pet
relieving itself on a limited common element balcony would
not only be impractical from a timing of occurrence
standpoint, but would likely violate Federal Aviation
Administration rules and regulations regarding the use of
drones.

FAA rules prohibit, among many other restrictions, operating
a drone in a careless or reckless manner so as to endanger
the life or property of another. To obtain the footage
necessary for the purpose of catching a unit owner in the
act of using a balcony as a dog run, the drone would likely
be deemed to be flown in a careless or reckless manner
because its proximity to the building could endanger not
only the unit owner or pet, but the property itself.

Q: Our condominium association provides coin-operated
washers and dryers in the common element laundry room for
unit owner and resident use. The equipment is owned by the
association and the association charges $1 per load.
Recently, a board member stated in a board meeting she
believed the association is prohibited from charging above
the actual cost for a laundry load because the unit owners
pay assessments. Can the board charge what it desires for
laundry loads?

A: Pursuant to Section 18.4 of the Condominium Act, the
board is granted the authority to administer the common
elements and adopt rules and regulations governing the
common elements, which may include user fees. Just like
boards have the authority to adopt user fees for moving in
or moving out of the building, pet registration, use of a
party room, and the like, condominium boards may set the
price for association-owned laundry facilities. Such user
fees are upheld by courts.

If unit owners feel the fees charged for a laundry load are
excessive, they can protest with their feet by taking their
dirty laundry to another laundry facility.

Q: My wife and I live in a 55-and-older community
association, and a master association administers the
complex. At the master association annual meeting, I asked
the board if an audit was performed and was told that an
annual audit of association funds is not needed. Must a
master association perform an annual audit? Is it a best
practice if not required?

A: It would not be common for master association declaration
and b-laws to require audited financial statements, but it
is possible. However, master associations are required to
supply annually to owners in sub-condominium associations an
itemized accounting of the common expenses for the preceding
year actually incurred or paid, together with the amount
collected pursuant to the budget showing any net excess or
deficit of income over expenditures, plus reserves.

The foregoing requirement is set forth in Section 18.5 of
the Condominium Act, which specifically applies to master
associations notwithstanding this provision contained within
the Condominium Act .

While it may not be a requirement by law to retain an
accountant to perform an actual audit of the association's
financial statements, it is a best practice to do so.

Publication date: Jun 21, 2015

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  Q: My husband and I reside in a condominium association.
Our bylaws state that on or before April 1 of each calendar
year the association must supply to unit owners an itemized
accounting of income and expenses. Our management company
insists that the association must only make this information
available upon request by a unit owner, and the only
information that must be supplied is a summary of amounts
expended without any description of the category of expense
or vendor identification. Is there anything more specific in
the Condominium Act on this issue?

A: Pursuant to Section 18(a)(7) of the Condominium Act, the
board shall supply annually to all unit owners an itemized
accounting of the common expenses for the preceding year
actually incurred or paid, identifying which portions were
for reserves, capital expenditures or repairs or payment of
real estate taxes, and with a tabulation of amounts
collected pursuant to the budget or assessment, and showing
the net excess or deficit of income over expenditures, plus
reserves.

The law requires boards to proactively provide the above
information to unit owners. However, it is a question of
semantics if the board is willing to provide such
information.

To the extent a unit owner desires more detailed information
than what is contained in the annual accounting, pursuant to
Section 19 of the Condominium Act, upon stating a proper
purpose in writing, unit owners are entitled to inspect the
books and records of account for the association's current
and 10 immediately preceding fiscal years, including
itemized and detailed records of all receipts and
expenditures.

Q: I am one of six owners in our townhouse community
association. According to the bylaws, all six unit owners
serve on the board of directors. On occasion for a board
vote for an issue, we encounter a tie vote. How should these
votes be resolved?

A: The community association is subject to the Common
Interest Community Association Act. However, the act does
not have any dispute resolution provisions in the event a
board vote results in a tie (incidentally, neither does the
Condominium Act).

To the extent there is a tie board vote, the motion does not
pass, and the board cannot take any action on the matter
that was being discussed and subject to a vote.

While not a legal solution, like sequestering a jury until
they make a decision, a possible practical solution might be
for the board to sit in a room and discuss until a
reasonable solution is reached, even if that means hours
upon hours of discussion.

Q: I live in a condominium association in which the windows
and window frames have been replaced recently. However,
immediately upon inspection of my unit's new windows, a
large scratch was discovered that either occurred during
installation or possibly during the manufacturing process.
An attempted fix by the window contractor has made the
scratch worse. Can't the board demand the contractor install
a replacement window if this window cannot be repaired?

A. It is a maxim of contract law that the owner and
contractor are bound to the terms of the contract, including
any provision governing correction of work. The terms of the
contract ultimately govern the parties' rights.

If the damage to the window was caused prior to or during
installation, the board should have the contractor repair
the damage or install a new window that is not damaged.

Publication date: Aug 9, 2015

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  As Part 2 of my column discussing legislative and case law
updates, this one will be devoted to amendments to the
Common Interest Community Association Act (CICAA) and the
Illinois Code of Civil Procedure affecting condominium and
community associations.

Amendments to CICAA that became effective in 2015 are as
follows:

Section 1-5: This amendment adds new definitions for
"electronic transmission" and "acceptable technological
means" relating to the use of technology in other new
sections of CICAA.

Section 1-25: This amendment provides the ability of owners
to vote electronically or by other technological means,
including the ability of the association to conduct
elections electronically or by other technological means.
This provision also added requirements for notice regarding
the use of technology.

Section 1-35: This amendment requires owners to provide a
copy of a lease to a community association unless otherwise
provided in the association's governing documents.

Section 1-85: This new section focuses on the use of
technology and notices. This section also contains
provisions relating to the restrictions and requirements to
use technology.

Sections 1-5, 1-20, 1-25, 1-30 and 1-50: This amendment
provides that CICAA applies to community associations that
are organized as limited liability companies and function
pursuant to operating agreements.

Amendments to CICAA that will take effect in June or July of
2016 are as follows:

Section 1-15(b): This amendment deleted the references to
community instruments being severed by CICAA. This section
now reads that community association documents shall comply
with CICAA.

Section 1-90: This amendment states that every community
association subject to CICAA is subject to the Condominium
and Common Interest Community Ombudsperson Act, which
created an ombudsperson for community association
communities. The ombudsperson shall offer training and other
resources to unit owners, associations and boards.
Associations will be required to register with the
ombudsperson, with renewal every two years, and associations
must create an internal dispute resolution policy on or
before Jan. 1, 2017.

Amendments to the Illinois Code of Civil Procedure that took
effect in 2015 affecting condominium and community
associations are as follows:

Association's right to rent a unit is clarified.

Section 5/9-111.1: This amendment provides that the
commencement date of a lease regarding an association's
right to rent out a unit in which it has obtained possession
through a forcible entry and detainer action must be within
eight months of the date the stay of the order of possession
expires. Otherwise, the association must obtain approval
from the court.

An association is still entitled to lease the unit for 13
months. If the assessment delinquency owed by the subject
unit has not reached a zero balance after 13 months, and the
lease needs to be extended beyond 13 months in order to pay
off the assessment balance, then the association must seek
approval from the court.

Associations must allow special process servers access to
gated communities.

Section 5/2-203. This amendment requires employees of a
residential housing community, including condominium or
community associations, and residential cooperatives, to
grant licensed process servers entry into the community to
serve process of law on a defendant or a witness who resides
within the gated community or building.

Association Entity Status to Use Forcible Entry and Detainer
Act

Section 5/9-102. This amendment allows a common interest
community that is organized as a limited liability company
to file a forcible entry and detainer action.

Illustration Caption: Photo: (Condo board meeting) JOHNNY
GREIG/GETTY

Publication date: Jan 10, 2016

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  Q: I recently purchased a condominium unit in Chicago and
reported to the property manager that my unit is always
quite cold. Our building has a central heating system and
there are thermostats in each unit to turn on and off a fan
to push the central heating air into the units. Is there a
minimum heat standard to which the condominium association
must comply?

A: The city of Chicago does have a heat ordinance, which
mandates minimum temperatures during cold weather months.
From Sept. 15 through June 1, the minimum temperature must
be 68 degrees Fahrenheit from 8:30 a.m. to 10:30 p.m. and at
least 66 degrees from 10:30 p.m. to 8:30 a.m. If only a
single unit in the condominium association appears colder
than neighboring units, the issue might not be the amount of
heat available in the central heating system, but could be a
thermostat issue regarding the fan not working properly in
the individual unit or a window issue allowing an excessive
amount of cold air to enter the unit.

Q: I own a condominium unit in a great community and most of
the unit owners follow the rules and regulations most of the
time. Nonetheless, we have a board member whose personal
mission is to regularly walk the property searching out for
rule violations for the board to levy fines. Is this
extensive policing of the rules common in condominium
associations?

A: Like many things in life, condominium boards need to
balance uniform and consistent enforcement of rules and
regulations with creating a harmonious living environment
for community members. It is not common for condominium
associations to have a "rules czar" that walks the property
with zealous eagerness to find the most trivial rules
violations. However, it is common for board members and unit
owners to report rules violations that they observe and some
communities have a designated person walk the property
periodically looking for storage of materials violations,
usually relating to the improper storage of personal
property in common elements, including storage rooms and the
garage. If a significant segment of a community feels that a
single board member is overzealous in seeking out rules
violations, such a group might be best served to attend a
board meeting and during the unit owner forum, convey their
feelings to the board concerning how the board could better
facilitate a harmonious living environment.

Q: I live in a community association, and approximately 10
years ago the owners approved an amendment to the
declaration to restrict leasing. The amendment grants the
board the authority to make exceptions to the leasing
restrictions upon a showing of hardship, but there is still
a time limit for the length of a hardship lease. Our
community has a unit that was sold 21 months ago and was
immediately occupied by renters in violation of the leasing
restrictions and even if this were a hardship exception
lease, the time period that has passed is longer than that
which is allowed even for hardship leases. Shouldn't the
board be enforcing the leasing restrictions?

A: Whether the unit owners of the unit in question are in
violation of the declaration's leasing restriction depends
upon the language of the declaration amendment. Sometimes to
the outside eye, unit owners conclude that a unit has
renters when, in fact, the unit may have occupants such as
family members, which are not deemed tenants under most
leasing restrictions. Nonetheless, the remedies a board
possesses include levying a fine and/or simultaneously
evicting the tenant for the unit owner's noncompliance with
the association's governing documents. Section 9.2 of the
Illinois Condominium Property Act allows the association to
recover its legal fees and costs to enforce governing
documents.

Publication date: Feb 28, 2016

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  Q: I recently purchased a condominium residential unit and
a deeded parking unit in the garage. In reviewing my
assessment ledger, I noticed that I am being charged a
condominium assessment for the parking unit and also a
rental fee by the association. Our management company says
the board can charge a rental fee against parking units to
defray costs. Is this true?

A: Deeded parking units are real estate and contain a
percentage ownership interest in the common elements,
thereby an associated assessment like all units in the
association. Deeded parking units also pay real estate taxes
because of their classification as real estate. There is no
basis whatsoever for the association to charge a "rental
fee" against a parking unit it does not own, inasmuch as the
real estate is owned by the titleholder to the parking unit,
not the association. If the parking units are part of the
common elements, the association would be entitled to charge
a rental fee for use of the parking space.

Q: I live in a condominium association and believe our board
is not properly following the recent Palm v. 2800 Lake Shore
Drive case (Palm II) that states that the board must conduct
business in open session. Our board has advised the unit
owners that contracts may be discussed in closed session and
are only required to be approved in open session. Its
position is that a contractor is the same classification as
an employee, which is an exception for purposes of
discussion in closed session under Section 18 of the
Condominium Act. Is this correct?

A: Section 18(a)(9) of the Condominium Act does contain an
exception that allows certain matters to be discussed in
closed session, including discussion of litigation,
considering information regarding the appointment,
employment or dismissal of an employee or discuss violations
of rules and regulations. However, there is no basis
whatsoever for a board to extend the analysis that a vendor
under a contract equates to employee status to allow
discussions of contracts to be held in closed session. While
there may be many opinions on whether the rulings in the
Palm II case are good or bad for associations, the court's
holding in Palm II requires the board to discuss and vote on
contracts in open session.

Q: I am on the board of a self-managed condominium
association. I have received conflicting information about
whether condominium associations must register with an
Illinois ombudsperson and adopt internal dispute resolution
rules. What is the case?

A. Section 35 of the Condominium Act was amended to state
that all condominium associations are subject to the new
Condominium Ombudsperson Act, which creates an ombudsperson
for condominium communities. The purpose of the ombudsperson
is to offer training and other resources to unit owners,
associations and boards. Associations are required to
register with the ombudsperson, with a renewal every two
years, and must adopt internal dispute resolution policies
on or before Jan. 1, 2017.

Publication date: Mar 6, 2016

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  Q: I am an owner in a town home association, and there is
a lot of confusion about when the Condominium Act applies
and when it does not to town home associations. On some
occasions we are advised by our management company that our
association is governed by the Not-for-Profit Corporation
Act, and other times we are told the Condominium Act
applies. Would you clear up the confusion?

A: The Condominium Act applies to any real estate subjected
to the terms of the Illinois Condominium Property Act. Most
commonly, the Condominium Act applies when residential units
are vertically stacked on top of each other in a building;
however, there are town home associations that are submitted
to the act, in which case it would apply.

Most town home associations are not subject to the
Condominium Act, but there would still be a declaration of
covenants, conditions and restrictions governing the
association. For town home associations where the
Condominium Act does not apply, but which are over 10 units
and have an annual budget in excess of $100,000, the Common
Interest Community Association Act will apply.

The Illinois Not-for-Profit Corporation Act applies to all
homeowners associations filed as a not-for-profit
corporations in the state of Illinois.

Q: I am a board member in a small, self-managed condominium
association. The board desires to amend its by laws with the
requisite approval of unit owners, but the board would like
to draft the amendment itself to save money on legal fees.
Is it required for an attorney to draft or record an
amendment ?

A: There is no legal mandate that an attorney draft and/or
record an amendment to an association's governing documents.
However, to ensure that the amendment accomplishes the
business objectives of the board and is proper and well-
drafted, it is wise for associations to retain an attorney
to effectuate the amendment.

While small associations may be adverse to incurring
expenses seeking professional assistance, whether it be
management, accounting or legal, such associations should
balance the costs with the needs. If there ever is an issue
with enforcement of the amendment because it was improperly
drafted, approved or recorded, the financial savings of
upfront legal fees may turn out not to have been worth it.

Q: I live in a large town home community association. Our
quarterly and annual meetings are full of chaos and
confusion and run without order. Can you give me some
guidance on how the association could accomplish smoother
meetings?

A: It is strongly recommended that associations follow, at a
minimum, an abbreviated form of parliamentary procedure to
conduct meetings. The most commonly followed parliamentary
procedures are outlined in Robert's Rules of Order, which
are only required to be followed if mandated in the bylaws.
Nonetheless, most associations use at least an abbreviated
form of parliamentary procedure and follow a process such as
using motions, seconds to motions, discussing motions,
amending motions and voting on motions.

Publication date: Mar 20, 2016

----------------------------------------------------------------
  For the last 28 years, the "Condo Adviser" has appeared as
a weekly column in the Real Estate section of the Sunday
Chicago Tribune to educate the public concerning condominium
and community association issues.

The "Condo Adviser" column will no longer appear weekly but
will be published periodically (approximately monthly).

Please continue to send your questions, comments and
concerns for publication to the "Condo Adviser's" email
address. Here's looking forward to another 28 years.

Q: I live in a condominium association and I think the board
is attempting to circumvent the recent ruling in the Palm v.
2800 Lake Shore Drive (Palm II) case. In order to address on
going issues with a large roof membrane and rooftop deck
replacement project, our five-person board created a
committee to discuss the roof project issues, and the
committee comprises all five board members. The board did so
believing that committees do not need to provide notice to
the unit owners . Is this allowed?

A: As readers of this column have been advised since 2014,
the Palm II case rulings have affected how condominium
boards operate. Among a few different rulings, Palm II holds
that a quorum of the board cannot discuss association
business without notice to the unit owners.

With all five board members of a five-person board sitting
on a committee, more than a quorum of the board will be
discussing association business and, thus, notice to the
unit owners must be properly delivered. The charade of
creating a committee versus holding a board meeting does not
relieve the board from providing proper notice to the unit
owners.

Q: I am a resident in a high-rise condominium building, and
another resident, who lives alone, creates regular
disturbances at all hours of the day. The police have been
called many times over the years and have taken away this
person by ambulance for a mental health evaluation, but the
resident always returns a few days later. What can be done
to stop the nuisances?

A: The board of directors possesses various remedies to
address violations of the governing documents, such as a
nuisance to other unit owners, including levying fines
and/or obtaining declaratory relief (i.e., seeking a court
order forcing a unit owner to take action or cease taking
action).

However, if the nuisances do relate to an individual with
mental health issues, the deterrent effects of levying fines
may be of nominal or no use, and a court order may be of
limited use because the individual may not have the ability
to control his or her actions. In such situations, the board
of directors should work with the immediate family to ensure
that proper mental health services are provided to the
resident to live harmoniously in the association.

If the family is unwilling to become involved, in extreme
circumstances the board should consider working with the
public guardian's office and any applicable municipal
agencies for the mentally ill to determine whether the
appointment of a guardian is appropriate and/or the if there
are appropriate mental health services to be provided to the
individual, which may include discussing if different living
arrangements are in the best interest of the individual.

Publication date: Mar 27, 2016

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  Q: The declaration for our condominium association
requires units to be owner-occupied. A unit is in the
process of being sold, and the prospective purchaser's
mother-in-law, father-in-law and their son intend to live in
the unit. The prospective purchaser has been given a copy of
the declaration with the occupancy requirements. What
options does the association have if the intended occupants
move into the unit?

A: Occupancy requirements contained in a condominium
declaration are presumed valid and will be upheld unless
they violate state or federal law. If the declaration only
allows a unit owner and his or her immediate family to
occupy a unit (commonly a parent, child, sibling or
grandparent), occupants other than those expressly allowed
people would be in violation of the declaration's occupancy
requirements.

As with any violation of the declaration, the association
possesses the remedies contained in its condominium
declaration, which would include fines and eviction of
occupants living a unit in violation of the declaration.
Pursuant to Section 9.2 of the Condominium Act, the unit
owner will be liable for the association's legal fees and
expenses to enforce the declaration.

Q: Our condominium board recently approved amendments to our
declaration. Are the amendments official, enforceable and
legally sound once approved by the board? Are there other
steps the board must take, such as recording the amendments
with the county recorder's office?

A: Approval by the board of a declaration amendment is
merely the first step, but the amendment must also be
approved by no less than two-thirds of the unit owners as
required by the declaration consistent with Section 27 of
the Condominium Act. Once approved by the unit owners (and
mortgagee approval, if required by the declaration), the
board must record the amendment with the county recorder's
office to be effective.

Q: I live in a high-rise condominium building in Chicago,
and our board recently disclosed it received an unsolicited
offer from a developer to purchase our entire building,
including all the units and common elements. The board
advised the unit ownership that if 75 percent of the unit
owners agree to the sale, it can be accomplished over the
objections of some unit owners, and the lump-sum payment
will be divvied up according to each unit owner's percentage
ownership. I strongly oppose this sale and do not want to
move. Can my unit be forced to be sold over my objection?

A: Section 15 of the Condominium Act expressly allows an
entire condominium building to be sold with the approval of
75 percent of the unit owners, (when the property contains
four or more units) and the sale shall be binding on all
unit owners.

Section 15 goes on to state that every unit owner shall
execute and deliver instruments necessary to effectuate the
sale. However, any unit owner who did not vote in favor of
such action and who has filed a written objection with the
board within 20 days after the date of meeting on which the
sale was approved is entitled to contest the value of their
unit interest if supported by a fair appraisal.

If the unit owner and the prospective purchaser cannot reach
an agreement as to the value of the unit, Section 15(b)
requires an expert panel to determine the value of the unit.

Publication date: Apr 10, 2016

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  Q. I am renting a condominium unit, and our lease states
that we can have up to a 50-pound pet dog. In fact, we have
a pet dog that is about 40 pounds. We just received notice
from the association that we must remove our dog from the
property because governing documents of the association have
a 15-pound dog limit. Our landlord never gave us a copy of
the association's governing documents, including pet rules
and regulations, and the association has stated that they
will evict us if we do not comply. Can we prevent the
eviction?

A. Section 18(n) of the Condominium Act states that
condominium declarations, bylaws and rules and regulations
are deemed incorporated into a lease as a matter of law.
Therefore, tenants of a unit in a condominium association
are obligated to comply with the condominium instruments
whether they received them from their landlord or not.

A lease agreement between a landlord and a tenant for a
condominium unit that purports to grant tenants rights that
are prohibited by the condominium instruments are not
enforceable and will subject tenants to the remedies a
condominium association possesses for violations of the
governing documents. Pursuant to Sections 9.2 and 18(n) of
the Condominium Act, the association does possess the right
to levy fines against a unit owner for a tenant's violation
of the governing documents and evict a tenant for violations
of the association's governing documents.

As a practical matter, tenants should discuss the issues
with their landlord and the association to reach a
reasonable solution, which might just be extra time to
vacate the unit without the assessment of fines and legal
fees related to an eviction. As far as the landlord failing
to deliver the governing instruments of the association to
the tenants and the inconvenience that has caused, the
tenants may have claims against the landlord for damages.

Q. We own a condominium unit in an association that has a
pool. Our unit is vacant because we are remodeling the unit.
We inquired with the managing agent to pay for a pool pass
because we are the unit owners; however, management advised
us that individuals must live in a unit to be entitled to a
pool pass and are refusing to give us a pool pass even
though we have agreed to pay the required fees. How can this
be?

A. Under the condominium declaration and bylaws and Illinois
law, unit owners have a right to use common element
amenities that are part of their condominium association. If
the association has adopted rules establishing fees for such
use, unit owners must pay such charges.

It is unenforceable for an association to prohibit off-site
unit owners from exercising their legal rights to utilize
the common elements merely because they are not residing in
the unit, which may be a second home. In fact, off-site unit
owners pay their pro rata share of expenses for maintenance,
repair and replacement of common elements through their
assessments.

If unit owners are leasing their units, such rights pass to
the tenants of the leased units, and the unit owners
themselves cannot utilize the common element amenities in
addition to their tenants' utilizing such amenities.

Q. I live in a condominium association. Our board issued
notice of a meeting, which also stated that the board would
be recessing for a closed session on a specific day and time
that would not be open to the unit owners. The notice of
meeting did not state the topics of the closed session.
Please advise what information must be disclosed in a notice
of meeting at which the board intends to recess to a closed
session.

A. Section 18(a)(9) of the Condominium Act states that
meetings of the board shall be open to unit owners except
for portions of the meeting held to discuss a) litigation
that has been filed or when such litigation is probable or
imminent; b) information regarding appointment, employment
or dismissal of an employee; or c) violations of rules and
regulations for a unit owner's unpaid share of the common
expenses. Thus, discussions of such topics in the closed
session are allowed by law, and the board may exclude unit
owners from attending such sessions.

As far as the notice of meeting in which a closed session is
referenced, there is no requirement that the board disclose
what topics will be discussed in closed session on the
meeting notice. Of course, the board may only discuss the
above-referenced topics to be in compliance with the
Condominium Act.

Publication date: Jun 12, 2016

----------------------------------------------------------------
  Q: I am on the board of directors of a condominium
association and believe one of the other directors has a
conflict of interest in regard to certain vendors due to her
personal relationship with the principals of those
businesses . Is there statutory guidance with respect to
conflicts of interest?

A: There are two statutes that have applicable provisions:
the Illinois General Not-for-Profit Corporation Act and the
Condominium Property Act.

Pursuant to Section 108.60 of the not-for-profit act, a
conflict of interest arises when a director is directly or
indirectly a party to a transaction, in which case, the
director may be counted for quorum but may not vote on the
transaction without proper disclosure. A director is
"indirectly a party to a transaction" when he or she has a
material financial interest in an entity or is a director or
officer of an entity.

Similarly, Section 18(a)(16) of the Condominium Property Act
prohibits a board from entering into a contract with a board
member, or corporation in which the board member or their
immediate family has a 25 percent or larger interest, unless
two conditions are met. First, the board must notify unit
owners of the intent to enter into the contract within 20
days after the decision is made. Second, unit owners must be
afforded an opportunity to file a petition and vote to
approve or disapprove the contract.

Q: I am a unit owner in a condominium association where the
association is the titleholder of a few units in the
building . In regard to the annual meeting to elect
directors to the board, should the board be voting in
percentage interests of those units for incumbent
candidates?

A: From a purely legal perspective, the board of directors
is entitled to approve how it may vote the percentage
interests for the units it owns, whether it be for
candidates at an annual election, a declaration amendment or
other vote open to unit owners.

However, from a practical and optics standpoint, the best
practice for a board of directors is to not vote the
percentage interest for units it owns for specific
candidates, but to merely be counted toward quorum.

Q: I am a unit owner in a condominium association with
elderly unit owners, and I received a communication from the
board soliciting candidates to run for the board. That
letter also states that board members will be receiving
communications via fax or e mail. However, many of our unit
owners do not have fax machines or email. Can the board
require members to have fax machines or e mail in order to
serve on the board?

A: Pursuant to Section 18 of the Condominium Act, the sole
criteria for being eligible to serve on a condo board is to
be a unit owner in the association.

While communications from the managing agent and/or the
president are common via email or fax, it is not a
requirement for service on the board. Alternatively, paper
documents may be delivered to board members if they do not
have email or fax capability.

While utilizing technology is commonplace to effectively
communicate with board members, unit owners without such
technology should not be deterred from volunteering to serve
on the board.

Publication date: Oct 9, 2016

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  Q: I live in a walk-up condominium building and a dispute
has arisen with the board of directors regarding snow
removal on the rear stairs and porches in the back of our
building. The association's snow removal contractor is paid
with common expense funds, but the board has not included
snow removal for the rear stairs and porches in the scope of
services. Is the association responsible for snow removal on
the rear stairs and porches?

A: Pursuant to Section 18.4(a) of the Condominium Property
Act, the association is responsible for the maintenance,
repair and replacement of common elements as a common
expense.

If the stairs and porches are classified in the condominium
declaration as a common element, the association is
responsible for snow removal. However, porches may be
classified as a limited common element that unit owners are
required to maintain, which may legally shift snow removal
responsibility to the pertinent unit owners.

That being said, it is unlikely that stairs from porches are
classified as a limited common element since they are a
means of egress for fire safety. As such, stairs are almost
certainly designated a common element, and the association
should be responsible for snow removal.

Q: I live in a suburban town home community association. Our
board of directors refuses to follow the Common Interest
Community Association Act in regards to open board meetings,
owner forum at board meetings, yearly audits and requests
for documents. My requests are met with bullying and
ignorance. Any suggestions?

A: The first question to be addressed is whether a community
association is actually governed by the Common Interest
Community Association Act. Pursuant to Section 1-75 of
CICAA, a community association shall be exempt from CICAA if
the community association is organized under the Illinois
Not-for-Profit Corporation Act and has either 10 or fewer
units or annual budgeted assessments of $100,000 or less --
unless the association elects to be covered by CICAA by a
majority of the directors or members.

If a community association is governed by CICAA and the
board refuses to comply with its provisions, the board
members are subjecting themselves to a breach of fiduciary
duty claim. If that reality does not inspire the board of
directors to comply with CICAA, owners have the option of
initiating litigation to force compliance, or -- to the
extent applicable depending on the facts -- seeking
assistance from the Common Interest Community Ombudsperson.
This position was recently created by the Common Interest
Community Ombudsperson Act.

Q: I live in a condominium association where the association
rules dictate that unit owners may use only one of two HVAC
contractors to service limited common-element HVAC
components belonging to a unit. I accept that as a unit
owner I am responsible for the maintenance, repair and
replacement of my HVAC system, but can the board mandate
that I use only one of two contractors for such maintenance?

A: A condominium board has broad authority to adopt rules
and regulations governing administration of the association
pursuant to Section 18.4(h) of the Condominium Property Act.
Since limited common element components are a portion of the
common elements, the board may mandate contractors to be
used for the maintenance, repair and replacement of such
components.

While it is not a universal standard for condominium
associations to mandate that unit owners use designated
contractors (mostly to avoid becoming entangled in a dispute
relating to poor workmanship), the board does have authority
to do so. If a unit owner has a legitimate reason for not
using one of the two preferred contractors for maintenance
of a limited common element component, the unit owner should
discuss with the board and request permission to use a
different contractor (one who is reputable and licensed).

Publication date: Jan 8, 2017

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Q: I live in a condominium association and am not always
able to attend the board meetings, so I rely on the board
minutes to know what business has been conducted. However,
the board minutes frequently include minimal information
regarding what was discussed.

For example, when the board approves a contract, the minutes
merely state the name of the contractor approved and the
amount of the contract, but there is no detail or discussion
on various bids for the work or the reason the board chose
the contractor.

It would be helpful to me to know why a contractor was
chosen, especially when the contract approved was not the
lowest qualified bidder. What is the standard for board
meeting minutes?

A: The purpose of board meeting minutes is to officially
document actions taken by the board of directors. Best
practice is for meeting minutes to be brief and capture
board business conducted, including motions and votes, but
not a summary of the discussion that occurred at the board
meeting.

Nonetheless, there is a balance between merely capturing
board decisions and providing information to unit owners.
While including a list of contractor bids or the reasons why
a board made a decision are not customary in minutes, on
occasion, boards provide some additional information about a
decision in meeting minutes.

However, boards are advised to carefully choose the language
used -- and any discussion highlighted -- when drafting
minutes because minutes will likely end up in the domain of
public information; inartfully drafted minutes could
adversely affect the value of units if the minutes alarm
potential purchasers.

Q: My daughter lives in a midsize condominium association
and purchased her unit in 2008. However, only a handful of
units were sold to owner-occupants, with the other 90
percent now owned by an entity that purchased the remaining
unsold units in bulk because the project was in distress.

The single-entity owner of 90 percent of the units approved
the sale of all the units and common elements in the
association per Section 15 of the Illinois Condominium
Property Act, with each unit's share of the purchase price
the same -- regardless of whether units are one- or two-
bedrooms or remodeled or not.

What are my daughter's rights to get fair market value for
her unit?

A: Section 15 of the Condominium Property Act does allow at
least 75 percent of the unit ownership to approve a sale of
all units and the common elements of a condominium to a
third party. However, the corporate formality of calling a
unit owner meeting and vote with proper notice must be
followed.

As far as the purchase price paid for units, Section 15(b)
states that if there is disagreement as to the value of a
unit when a unit owner did not vote in favor of the sale of
the property, that unit owner has the right to designate an
appraisal expert to represent him or her on a panel to
determine the market value of the unit. The prospective
purchaser of the property also is entitled to appoint an
appraisal expert to the panel and those two experts then
mutually agree on a third appraisal expert for the panel. A
majority vote of the experts decides the market value.

Q: In my condominium association, we have a unit owner who
is a young adult and his parents live with him. The young
adult owner has asked the board of directors if one of his
parents can serve on the board in his place with a signed
power of attorney for property. Is this allowed?

A: Pursuant to Section 18(a)(1) of the Condominium Property
Act, only unit owners may serve on the board of directors.
Therefore, occupants of a unit who do not have a title
interest in the unit cannot serve on the board regardless of
their relationship to the unit owner or whether a power of
attorney is executed purportedly for the sole purpose of
serving on the board.

Publication date: Feb 12, 2017

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  Over the next several weeks, the column will provide a
review of legislative revisions to the Illinois Condominium
Property Act, Common Interest Community Association Act and
Illinois Code of Civil Procedure, and highlight Illinois
cases that affect condominium and/or community associations.

Amendments to the Illinois Condominium Property Act that
became effective in 2015.

Section 2: This amendment added new definitions for the
terms "electronic transmission" and "acceptable
technological means" for purposes of providing clarity
within new sections of the Condominium Act relating to the
use of technology for electronic notices and electronic
voting.

Section 12: This amendment revised insurance requirements
and also extended the definition of "improvements and
betterments." Further, Section 12 was amended to delete a
previous provision that allowed a board to buy homeowners
insurance on behalf of a unit owner who failed to purchase
it.

Section 18.4: A new subsection (s) has been added to allow a
board to adopt rules and regulations for the electronic
delivery of notices and other communications required to be
delivered by the association by the Condominium Act. This
new section includes a procedure for the delivery of such
electronic communications and requires the consent of the
unit owner (i.e. the unit owner must opt in).

Existing Section 18.8: This amendment voided restrictions
within a governing document that limited or restricted the
rights of the board unless such provision is approved by a
vote of 75 percent of the unit owners after the election of
the first unit owner board.

A new Section 18.8 (a numbering error by the legislature)
has been added allowing use of technology for a variety of
purposes, including voting, and delineates the procedures of
what is required in order to vote electronically, the types
of authorized technology and also outlines restrictions on
the use of technology.

Legislative changes to the Illinois Condominium Property Act
that will become effective in June or July.

Section 18(a)(6): This amendment decreases the number of
days required for a board to provide unit owners a copy of
the proposed annual budget to 25 days from 30.

Section 18(a)(9): This amendment expands a board's powers
relating to the use of technology, which includes board
members participating in meetings by use of acceptable
technological means.

Section 18(a)(21): This new section has been added to grant
boards authority to act in an emergency situation. In the
event the board acts outside of a meeting in an emergency
situation, the board must give notice within seven business
days of the situation to the unit owners with a description
of the action taken to address the emergency.

Section 27: This section revises the amendment procedures
for condominium declarations and bylaws to state that if an
amendment is necessary to correct an omission, error or
inconsistency or to conform the declaration or bylaws to the
Condominium Act or other applicable statute, a vote of the
unit owners is not required.

Further, for such amendments, mortgagee approval is not
required, but mortgagee notice to lien holders is still
required.

Section 35: This amendment states that every condominium
association is subject to the new Condominium Ombudsperson
Act, which creates an ombudsperson for condominium
communities.

The ombudsperson shall offer training and other resources to
unit owners, associations and boards. Associations will be
required to register with the ombudsperson, with renewal
every two years, and associations must create an internal
dispute resolution policy on or before Jan. 1, 2017.

Illustration Caption: Photo: A change to the Illinois
Condominium Property Act allows boards to adopt rules and
regulations for electronic delivery of notices and
communications. JACOB WACKERHAUSEN/ISTOCK

Publication date: Jan 3, 2016

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Q: I am a board member of a small condominium association
where a leased unit has a tenant who is regularly disruptive
to other unit owners. The board has reached out to the unit
owner -- the tenant's landlord -- to discuss his tenant in
an attempt to stop the disruptive conduct, but there has
been no change in the tenant's behavior. What remedies does
the board possess?

A: For any violations of a condominium association's
governing documents by a tenant, according to sections 9.2
and 18(n) of the Illinois Condominium Property Act, the
board may levy fines against the unit owner for the tenant's
violations and charge the owner for any legal fees and costs
incurred by the association to enforce the governing
documents.

Further, according to the same provisions, the board also
has the authority to file an eviction lawsuit against the
tenant for violations of the governing documents. To move
forward with the eviction, before filing an eviction
lawsuit, the board must first provide proper written notice
to the tenant to terminate the tenancy and demand the tenant
vacate the premises.

Q: I am a unit owner in a condominium association and just
learned that Section 19 of the Condominium Property Act was
revised to allow unit owners to request email addresses and
telephone numbers of other unit owners in the association.
To me, this is a travesty and breach of my privacy rights,
nonetheless, it is the new law. Are there any protections in
the statute in case a unit owner attempts to misuse this
information?

A: Section 19 of the Condominium Property Act was revised to
expand the information that a unit owner may request from
the association. Surprisingly, the Illinois legislature
allowed that expanded information to include unit owners'
email addresses and telephone numbers.

The legislature's solution to potential abuse was to include
language in the revised Section 19 that a requesting unit
owner may be required to certify, in writing, that obtained
email addresses and telephone numbers will not be used for a
commercial purpose, which is defined in the new Section 19
as "for sale, resale, or solicitation or advertisement for
sales or services."

The revised Section 19 also expressly allows a condominium
board to levy fines against any unit owner who falsely
certifies a noncommercial purpose. Boards should strictly
enforce these provisions.

It should be noted that unit owners may choose the email
address and telephone number to be disclosed for a Section
19 request, so if privacy is a concern, unit owners should
select an email address and telephone number that makes them
comfortable.

Q: I am a board member of a self-managed condominium
association. With winter upon us, the board wants to execute
a snow removal contract. Are there any laws addressing
onerous provisions in snow and ice removal contracts such as
hold harmless provisions for the association to indemnify a
snow removal contractor if it is sued (even if caused caused
by the contractor's negligence)?

A: Effective back in August 2016, the Snow Removal Service
Liability Limitation Act voids certain provisions typically
included in snow and ice removal contracts as against public
policy. Indemnification provisions, hold harmless provisions
and provisions mandating defense against tort liability are
now void and unenforceable.

The new statute does not apply to contracts for snow or ice
removal on public roads and also does not apply to insurance
policies, surety bonds or workers' compensation claims. The
act also does not affect any immunities, liabilities or
affirmative defenses under other laws.

Publication date: Jan 21, 2018

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An uproar-inducing 2017 amendment to the Illinois
Condominium Property Act that made it easier to access condo
unit owners' personal information caused ire among many an
owner. Last month, the Chicago City Council adopted an
ordinance allowing condo associations to bypass the new law.

Section 19(a)(7) of the Illinois Condominium Property Act
took effect Jan. 1 and mandated that Illinois condominium
associations provide the personal phone numbers and email
addresses of all unit owners in a condominium association
upon written request by a unit owner. Many associations,
unit owners and managers believe the legislation is overly
broad and does little to nothing to protect the privacy of
condo owners.

On Jan. 17, a couple of weeks after the new law took effect,
two Chicago aldermen, Brian Hopkins, 2nd, and Brendan
Reilly, 42nd, introduced a Chicago ordinance to nullify the
effect of a portion of the Section 19 amendment. The Chicago
privacy ordinance expressly states that no unit owner
(except those serving on the condo board) shall have the
right to examine or make copies of a unit owner's personal
information, including names, addresses, email addresses,
telephone numbers and weighted votes.

On March 28, the Chicago City Council adopted the ordinance.
This means that Chicago condo associations no longer have to
provide an owner's personal information to other owners, and
a unit owner is not entitled to such information unless two-
thirds of all owners vote to opt out of the Chicago condo
privacy ordinance.

The Chicago ordinance is based on the legal doctrine of home
rule authority to address the issue locally in lieu of an
amendment to the state Condominium Property Act.

The new ordinance will take effect April 18. However, due to
the inconsistency between Section 19 and the Chicago privacy
ordinance, there's the possibility of a legal challenge to
the ordinance.

On Jan. 24, Sen. Kwame Raoul, D-Chicago, introduced an
amendment to Senate Bill 572 to specifically strike the
Section 19 requirement to provide email addresses and
telephone numbers to condo unit owners. But in mid-February,
another Chicago Democrat, Rep. Andre Thapedi, introduced
House Bill 4910 to block local governments from using home
rule authority to nullify provisions of the condo act --
including an association's collection and sharing of
records.

Also in mid-Feburary, Rep. Kelly Cassidy, D-Chicago,
introduced Illinois House Bill 5126 to amend the act to
state that condo associations shall provide each member with
the opportunity to specify whether the association may
disclose their info to other members -- in Cassidy's bill,
unit owners would be able to opt out.

And lastly, again in mid-February, Rep. Sara Feigenholtz,
D-Chicago, introduced House Bill 4816 to provide that the
board of directors of a condo association, or any person who
obtains information under the condo act, shall not sell or
distribute owners' personal info to any commercial or other
entity not related to the association.

As one can see, there are several Illinois legislative
proposals at play. For now, thanks to the new privacy
ordinance, Chicago condo owners' email addresses and phone
numbers are protected.

Associations and owners must wait and see what the state
legislature enacts to strengthen -- or weaken -- privacy
protections related to Section 19 in the months ahead.

Publication date: Apr 8, 2018

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Q. I am a board president of a small condominium association
and we are experiencing a noise issue, specifically the
honking of car horns when locking and unlocking vehicles. We
have a unit owner who typically presses his remote key
several times when locking or unlocking his door, thereby
sounding his horn each time -- up to six successive "honks"
at a time. The board has posted generic notices in the
common elements about the noise issue for unit owners to be
mindful of the issue, but this unit owner refuses to alter
his conduct. Thoughts?

A. Noise complaints in condominium associations are common.
Most bylaws contain prohibitions on noxious or offensive
activities occurring in units or the common elements. Thus,
the issue for the board is how to apply that provision to a
particular noise complaint.

The board possesses the authority to levy fines and possibly
seek other remedies for any violation of the governing
documents pursuant to the Condominium Act and its
condominium declaration. For a board to take action on a
noise complaint, in addition to the subjective perception of
the complaining unit owner that the noise is a disturbance,
the board must determine that the alleged noise is
objectively unreasonable before the board can exercise its
remedies by weighing the evidence for a specific factual
circumstance.

For example, unit owners have a right to listen to their
stereo or television in their unit, but a unit owner
listening to their stereo or television at an unreasonably
high volume disturbing other unit owners is an objectively
unreasonable noise.

Therefore, if a unit owner is using his remote key
locking/unlocking mechanism in such a manner that causes the
doors to be locked/unlocked multiple times with a horn beep
each and every time, such conduct may rise to the level of
unreasonable noise in the determination of the board, and
subject the unit owner to fines.

Q. I live in a condominium unit that has visible termite
damage around both the outside and inside areas of my unit's
door frame. My condominium association sent an exterminator
to treat the affected areas, but it is my opinion that the
entire building needs to be treated. I am concerned about
doing renovations in my unit and termites continuing to
survive and causing new damage to my unit. What is the
association's obligation in this situation?

A. Pursuant to Section 18.4(a) of the Condominium Act, and
applicable case law, the board of directors has wide
latitude to make decisions regarding the maintenance, repair
and replacement of the common elements. In fulfilling its
fiduciary duties, the board should consult with a pest
control vendor on the appropriate abatement for a termite
infestation.

Assuming the board has followed the recommendations of its
pest control vendor, if the pest control vendor concluded
that treating merely the affected areas is sufficient, the
board is well within its rights to perform a limited termite
abatement treatment. In that situation, treating the entire
building would be unwarranted.

Q. I am on the board of a condominium association and our
board is looking to fill a vacancy. The board member who
resigned recommended that an owner-occupant to fill the
vacancy, whereas the board president is recommending an
investor-unit owner who used to live in the property. Can an
investor-unit owner serve on the board of directors?

A. The only criteria to serve on the board of directors is
to have an ownership interest in a unit. This requirement is
codified in Section 18(a)(1) of the Condominium Act and most
condominium bylaws. The criteria most boards use in filling
a board vacancy is to appoint an individual whose knowledge
and experience will bring value to the board in
administering the association.

Publication date: Mar 10, 2019

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Q: I am an owner in a condominium association, and I
appreciate the board's need to maintain owner privacy in
various situations. However, our community has learned that
a resident has tested positive for COVID-19, and the issue
of privacy versus contact tracing is being discussed in the
community. What should the board disclose relating to a
resident who tested positive for COVID-19?

A: Since the arrival of the new coronavirus earlier this
year, condominium boards have been grappling with what to
share with residents when the board or its managing agent
learns that a resident has tested positive for COVID-19. Due
to privacy laws, unless the resident expressly authorizes a
board to share their identity, the board and managing agent
should not share the identity of a resident who tests
positive for COVID-19.

It should be noted that the board or managing agent only has
such information to the extent it is voluntarily shared by
the resident. If a board names a resident against their will
and advice of legal counsel, not only could it subject the
board to potential liability for damages, but it will
discourage any other resident who tests positive from
sharing such information with management. The best practice
is for the board to notify the residents of the existence of
an individual who tests positive for COVID-19 for purposes
of transparency and as a reminder for all residents to
follow guidelines from the Centers for Disease Control and
Prevention.

Q: Our condominium association board adopted a rule to make
our building "smoke-free" (i.e. banned smoking in the common
elements as well as individual condominiums). There was no
vote of the association membership to amend our declaration
or bylaws to make our association "smoke-free." Does the
board have the authority to prohibit smoking in individual
condominiums with merely a rule change approved only by the
board?

A: Due to the concerns and smells of secondhand smoke, with
increasing frequency, condominium associations have been
approving smoking prohibitions pertaining to common
elements, limited common elements (such as balconies) and
individual condominiums. Per Section 18.4(a) of the
Condominium Act, the board administers the common elements.
As such, a board may impose smoking restrictions in its
rules and regulations for the common and limited common
elements. To prohibit smoking in individual residences,
however, an amendment to the declaration or bylaws is
required, which requires at least two-thirds of owners to
approve, unless the governing documents require a higher
percentage. The board does not have the legal authority to
prohibit smoking in individual condos merely through a rule
change.

Q: I own a condo, and I installed a small camera on my door
to see my guests. The association management company sent me
a demand letter to remove my door camera. Since this is my
hallway door, don't I have the right to install a camera on
it if I want?

A: Hallway doors are classified as limited common elements.
Limited common elements are a portion of the common elements
exclusively reserved for one or more residents, which means
the board has a certain degree of control over hallway
doors. Almost all declaration and bylaws expressly state
that condo owners may not modify or alter the common
elements or limited common elements without board approval.
This concept makes sense for uniformity of appearance of
limited common elements, which includes not only hallway
doors, but balconies or roof terraces as they too are
classified as limited common elements.

Publication date: Dec 13, 2020

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The roof shingles will deteriorate, the driveway will need a
new surface and even the corridor carpeting will wear thin.

But unlike a co-op corporation, which can easily borrow
funds for capital outlays to repair such conditions, a
condominium association is not so fortunate.

Banks are still wary since the association has no collateral
to pledge. And a special assessment creates too much
individual hardship and internal strife.

"Raising the possibility of a special assessment is the best
way I know to get lynched," said Bob Kirkland, president of
Professional Property Managers Inc., of Virginia Beach, Va.,
which manages 72 associations.

No wonder more condo associations are placing greater
emphasis on establishing and financing a well-thought-out
capital reserves program.

A survey by the Community Associations Institute, a national
network of condominium officers and their advisers,
headquartered in Alexandria, Va., showed that in 1989 the
need to build up reserves was the major cause of an increase
in monthly common charges.

The use of the special assessment fell from 25 to 16 percent
of the 230 associations surveyed in a nationwide random
sampling.

A planned program of capital reserves is essential for other
reasons, too, said Douglas Kleine, director of research for
the institute.

The secondary mortgage market-investor pools that buy
individual mortgages-now insists on assurances that such a
program is in place. This means that a local mortgage
officer will require the same verification before approving
a loan on an individual unit.

Further, California, Florida and other states have laws
requiring an association to provide unit owners with details
of its capital reserve program on an annual basis. More
states may follow.

(The Illinois law, that an association with a reserve fund
must provide details annually, was expanded by Senate bill
742, passed in the last session of the Illinois legislature.
The new law requires that all associations maintain
reasonable reserves for repair or replacement of the common
elements and that the annual budget of an association must
contain an itemization for the amount of reserve funds,
according to Mark Pearlstein, The Tribune's condo
columnist.)

And the American Institute of Certified Public Accountants
is creating new guidelines that will require the inclusion
of a capital reserve program in any audit of an association.

The basic tool to set up a program that will be acceptable
to lenders and regulators is the reserve study, a blueprint
for action that takes into account engineering factors such
as the anticipated life of a roof or heating system, plus
financial projections that compensate for inflation and the
fluctuating rate of return on invested reserves.

A handful of companies, among them Association Reserves, of
Calabasas, Calif., and Erickson Associates, of Orlando and
San Diego, are beginning to specialize in this burgeoning
field, combining engineering and actuarial expertise to
arrive at an accurate figure for the amount of money needed
and a timetable for expenditures.

If such a company takes over the job, expect to pay around
$600 for under 40 units and up to $10,000 for 500 units or
more, said Robert M. Norlund, president of Association
Reserves.

Most condominiums, however, will begin by simply getting an
engineer's report. Kirkland recommends using only a licensed
professional engineer as specialized knowledge will be
needed.

Ideally, Kirkland said, the person also will have had
experience compiling reports for buildings or developments
that were being converted from rental status, since the work
closely parallels the kind needed for a reserve study.

Condo officers should not rely solely on the cost estimates
for replacement provided by such a study, managers said. It
is wiser, they said, to get a precise figure by putting the
items out for local bids.

"Each contractor usually knows his particular job and
specialized local conditions much better," said Rhonda
Major, senior manager with Bay Area Property Management, of
Clear Lake City, Tex.

The rule-of-thumb is to have such a report updated every
three years. After this, if the association does not have a
management company accustomed to making up the funding and
expenditures projections, the officers could use a computer
program.

The Community Associations Institute favors "Community
Reserves," a program written by Craig Gilbert, an accountant
in Atlanta. It costs $195 (call 404-231-0349 or write Front
Row Systems, P.O. Box 550346, Atlanta, Ga. 30355).

Major, like others, also favors an unallocated amount of
around 3 percent of the total to cover such variables as a
shorter-than-anticipated life of a particular system, or
perhaps an upgrade to a product that is technically or
esthetically more appealing.

Making certain that ongoing maintenance chores become part
of the capital reserve progam also helps, Major said.

More detailed planning information is available in "Reserve
Study Guidelines" a 120-page book costing $32.95, and
"Reserve To Preserve," a booklet costing $9.50; both are
from Community Associations Institute. Write 1423 Powhatan
St., Alexandria, Va. 22314, or call (800) 342-5224.

Publication date: Sep 24, 1989

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Q-We found the perfect home to buy. It has a large first
mortgage at only 8 percent fixed interest. The problem is
this loan has a due-on-sale clause. The seller says he will
accept our down payment and will help finance the sale. How
can we do this without the lender calling the first
mortgage?

A-It would be a shame to disturb that beautiful 8 percent
fixed interest rate first mortgage. However, there is no way
I know of for you to take title to the property without
risking the lender will call the mortgage.

But you can use a long-term, 30-year, lease-option sale,
which can give you all the benefits of ownership, according
to IRS Revenue Ruling 60-4. The seller can treat the
transaction as an installment sale. However, the insurance
policy remains in the seller's name, so the lender does not
learn of the sale.

All you would lack is the deed, which could be obtained any
time you wish to pay off the seller and risk the first
mortgage lender calling the loan. Further long-term lease-
option details are in chapter seven of my book "The Smart
Investor's Guide to Real Estate," available from your public
library. Or consult your tax adviser or attorney. Rented
condo deductions

Q-In mid-1990 I bought a condominium where I thought I would
live. But then I met a wonderful man and we decided to get
married; so I rented the condo to a friend. Now that I am
preparing my 1990 income tax returns, I am wondering how to
depreciate this condo. Can I depreciate the full purchase
price?

A-No. You must make some allocation of your purchase price
to your share of the non-depreciable land value. If the
condo is in a large complex, your share of the common area
land is very small. But if there are only a few condos in
the complex, your share of the non-depreciable land value
will be larger. Typically, condo investors find they can
depreciate at least 80 to 95 percent of their purchase
price. Rejected offer revived

Q-My husband and I made a written purchase offer for a
house. The Realtor phoned us the next day to report the
seller had rejected our offer and refused to make a
counteroffer. That was about two months ago. Yesterday the
Realtor phoned to tell us the seller wants to accept our
offer after all. Since we neglected to pick up our $500
deposit from the Realtor's office, she says our offer is
still valid. However, we no longer want to buy that house.
Can we be forced to buy it?

A-It is basic contract law that a rejected purchase offer
cannot later be accepted. I am shocked the Realtor was not
aware of this elementary contract principle and tried to
trick you into thinking your purchase offer is still valid.

However, if you want to buy the house, you can accept the
seller's offer to sell to you on the terms you originally
proposed. But you are not obligated to purchase the house
unless you wish to accept the seller's offer.

Casualty loss

Q-Last October, the city sewer backed up and flooded our
front lawn. It ruined our landscaping. I called our
insurance agent, but she said this type of loss is not
insured. If we spend money on new sod, flowers and
landscaping, is there any way we can deduct our loss?

A-Yes. It sounds like your loss meets the "sudden,
unexpected, or unusual" test for a personal casualty loss
tax deduction. However, you can deduct such an uninsured
personal loss only to the extent that it exceeds 10 percent
of your adjusted gross income.

For example, if your adjusted gross income is $30,000, you
can deduct a casualty loss that exceeds $3,000. However, the
first $100 of each personal casualty loss is not deductible.
If you paid $5,000 to restore your landscaping, since the
first $3,000 in this example is not deductible and the $100
floor applies, you could deduct $1,900. ----------

Please note: Real estate laws differ from place to place,
and laws of your area should be checked before making
decisions on real estate problems. Robert Bruss will answer
inquiries addressed to Tribune Real Estate Features Service,
P.O. Box 280038, San Francisco, Calif. 94128.

Publication date: Mar 8, 1991

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Owning/Renting.

Q--My husband and I signed a contract to buy a new house.
The realty broker wanted a $5,000 deposit, but we paid
$1,000 and are supposed to pay the $4,000 additional
deposit. The contract has a liquidated damages clause that
says if we cancel, we forfeit our deposit.

Since we signed the contract, the stock in my husband's
company has declined. We were counting on that stock for our
down payment. When I phoned the broker to inform him of our
predicament, he seemed angry. He said he didn't care what
our reasons are for canceling, and we will forfeit our
deposit.

I faxed a cancellation notice to the developer, realty agent
and the mortgage officer. Can we get our deposit refunded?

A--When you signed that purchase offer, which was accepted
by the developer, you entered into a binding legal contract.
It did not entitle you to a "free look."

The seller is obligated to sell to you and you are obligated
to buy that home. The fact that your husband's stock has
declined in market value is irrelevant.

The liquidated damages clause of your purchase contract
means if you don't complete the home purchase, the seller is
entitled to keep your deposit as pre-agreed damages.

However, if the seller sells "your home" to someone else for
a price equal to or greater than you offered, you might be
able to sue the seller and obtain a court judgment for a
refund if the seller suffers no actual damages or made a
profit due to your default. For more details, please consult
a local real estate attorney.

Q--I have been adding to my regular mortgage payment an
extra one- twelfth every month. Does that extra money go
toward principal reduction?

A--Be sure to clearly designate each month that you want the
loan servicer to apply your extra payment to principal
reduction.

The result will be cutting the mortgage's term and the total
interest dollars you pay over the life of the mortgage.

If you fail to designate how you want the extra payments
applied, many lenders automatically apply that excess
payment to your property tax and insurance impound account,
if you have one.

Q--Two years ago we sold a rental condo we owned for 14
years. We did a tax-deferred Internal Revenue Code
1031(a)(3) Starker exchange for another condo purchase,
which has been a rental since then.

Now we want to sell our principal residence, using that
$250,000 home sale tax exemption you often discuss, so we
can move into our rental condo. If we do so, will we owe tax
on the sale of condo we sold two years ago?

A--No. You have discovered what I call an "ultimate tax
shelter." You sold the first rental condo by making a
Starker tax-deferred exchange for another condo. When you
convert that acquired rental condo into your personal
residence, it is not a taxable event because there is no
sale. For more details, please consult your tax adviser.

Publication date: Dec 22, 2000

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  Q: I live in a condominium association, and a few of our
board members are "snowbirds" (They reside in Florida for
approximately six months a year).

For board meetings, these board members call into the
meeting on a speakerphone so they are able to hear board
member discussion, and unit owners attending the board
meeting can hear them. Is this allowed under Illinois law?

A: Effective 2016, the Condominium Act was amended to
expressly allow board members to attend board meetings by
speakerphone or any acceptable technological means, such as
Skype or other video conferencing, and such participation
would constitute attendance in the board meeting. While the
Condominium Act was just modified to expressly allow this
practice, in reality board member attendance at meetings via
speakerphone was a common practice before 2016 and is
allowed pursuant to the Illinois Not-for-Profit Corporation
Act.

Q: In 2009, our condominium association board approved an
amended and restated declaration to bring our declaration
into conformity with the Condominium Act. However, the board
left in a provision from our original declaration that
stated that board members must reside on the property to be
entitled to serve on the board. I thought Illinois law
prohibited such a policy . Am I correct?

A: Nonresident unit owners may serve on the board of
directors of a condominium association, and provisions to
the contrary in a condominium declaration, bylaws or rules
and regulations are not enforceable. Section 18(b)(2) of the
Condominium Act expressly states that there shall be one
class of membership, and condominium bylaws that treat
nonresident unit owners differently from resident unit
owners would violate this prohibition.

Further, Section 18(a)(1) of the Condominium Act states that
the election of the board shall be among the unit owners and
does not contain any other restrictions. And, lastly,
Section 2.1 of the Condominium Act states that any provision
of a condominium instrument inconsistent with the
Condominium Act is void as against public policy and
ineffective.

Q: I live in a large suburban condominium association
composed of many three-story buildings, with six identical
units per building. In each building, the units on the
second and third floors pay slightly higher assessments,
even though all of the units are the same size. This seems
unfair inasmuch as those units utilize the property in the
same manner. Our property manager informed me that amending
the declaration to change the unit percentages requires 100
percent unit owner approval. Is the manager correct?

A: Your property manager is correct. Section 4(e) of the
Condominium Act requires 100 percent unit owner approval in
order to change unit percentages. In fact, Section 4(e)
provides the formula for a developer to set unit
percentages: They must be computed based on the value of
each unit (purchase price) in relation to the value of the
property as a whole, not square footage. Since the higher
floors units almost certainly had a higher initial offering
purchase price, their unit percentages should be slightly
higher than identical-sized units below, which would be
consistent with the Condominium Act.

Publication date: May 8, 2016

----------------------------------------------------------------
Q. I am considering buying one unit in a six-unit tenancy-
in- common apartment building. As I understand it, there is
one mortgage on the building, and each owner is a tenant-in-
common with the other owners. Each owner has the right to
occupy a specific apartment.

The "converter" developer is living in and owns one of the
apartments. So far, the other five are vacant. These
apartments have been listed for sale several months. What do
you think of this arrangement?

A. Please be extremely careful. Buying into this situation
could be quite troublesome if you decide to resell your
apartment . The prime reason is it is impossible to obtain
an individual mortgage since you will be a tenant-in-common
with the other co-owners.

Should one of the co-owners fail to pay their share of
expenses, the others must make up the deficit or risk
foreclosure of the entire building. I do not recommend
buying a tenancy-in-common apartment.

Q. I bought a HUD foreclosure condo in September 1999. In
February 2000, I learned from the homeowners association
management company that the previous owner won a $10,000
claim for flood damage caused by defective plumbing.

This unit is considered the "low point" of the condo
building, meaning any type of uncontrolled water will back
up in my unit, including tubs and toilets. This problem
cannot be corrected without tearing down and rebuilding.

Do I have any rights under the disclosure laws? As you know,
HUD foreclosures are sold "as is." What are my rights and
responsibilities when I sell?

A. Unfortunately, mortgage lenders who foreclose on a
property are not required to make disclosures to buyers.
Plus, the Department of Housing and Urban Development's
foreclosure properties are sold as is. It looks like you
don't have recourse against anyone, except possibly the
homeowners association for repairs.

Your situation is a good example of why every home buyer,
even condo buyers, should make their purchase offers
contingent on approval of a professional inspection report.
A good inspector would have discovered the problems you
listed.

When you sell, you must disclose to prospective buyers that
the condo is subject to water damage. Next time, please be
more careful.

Q. Are home-improvement costs tax deductible? Also, if I
refinance my home, are my closing costs tax deductible? We
bought our home last year and already refinanced once. Now
we are debating refinancing again.

A. Home-improvement costs are not tax deductible. However,
save your receipts and add the total expenses to the
adjusted cost basis of your home. When you eventually sell
the home, the increased basis will reduce your capital gain.

Costs of home refinancing must be spread out over the life
of the refinanced mortgage. For example, if you get a
30-year mortgage and pay $1,000 in loan-fee points, you can
deduct $33.33 for each of the next 30 years.

However, if you refinance again, in the year of the re-
refinance you can fully deduct any remaining undeducted
loan-fee costs from the previous refinance. For instance, if
you have a $966.67 remaining undeducted loan fee from your
refinance in 2000, when you refinance again in 2001, you can
fully deduct that remaining $966.67 on your 2001 tax
returns. For more details, please consult your tax adviser.

Q. I bought a two-family duplex house in 1985. I lived in
one side and rented the other side to tenants. Now I have
the property listed for sale. I moved out about a year ago.
Both sides are currently rented to tenants.

What about capital gains when I sell? I've always taken the
depreciation tax deduction on the rental side. Now my CPA is
depreciating both sides. When I sell this property, I want
to set the money aside and buy another property in the near
future. How long can I do so without owing tax on my profit?

A. For tax purposes, the sale of your two-family duplex
property is really two sales. If each side is comparable,
then you can split the gross sales in half. However, if each
unit is substantially different, then you should obtain a
professional appraisal to allocate the sales price between
the two "sales."

Capital gain on the sale of the rental side is potentially
fully taxable. However, it can qualify for an Internal
Revenue Code 1031 tax-deferred Starker exchange.

To qualify, the sales proceeds for that side must be held by
a third-party intermediary accommodator, such as a bank or
title company, beyond your constructive receipt. You then
have 45 days to designate a qualifying replacement property
and 180 days to complete the acquisition of another rental
or investment property.

As for the sale of your former personal residence, if you
owned and occupied it an "aggregate" two years out of the
last five years before the sale, it can qualify for up to
$250,000 of tax-free home- sale profits. If you are married,
up to $500,000 can be tax-free. However, the rental
depreciation that has been claimed during the last year will
be "recaptured" and taxed at a 25-percent federal tax rate.
For more details, see a tax adviser.

Q. Is it possible to buy a home using a "power of attorney"
form signed by my parents to me, after one parent dies?

A. Power of attorney is a short, simple document appointing
an attorney-in-fact to represent the grantor. It must be
notarized and recorded if real estate sales or purchases are
involved. When the grantor dies, that automatically cancels
or invalidates the signed power of attorney form.

Publication date: Apr 21, 2001

----------------------------------------------------------------
  Q: I live in a condo, and the neighbor below me complains
about the sounds of my washing machine when operated at 6
a.m.

Can a complaining unit owner dictate what hours I can use my
appliances because he finds the noise bothersome?

A: In condominium bylaws, a common provision is a
prohibition of noxious or offensive activities in a unit
that disturb other unit owners.

In determining whether the noise violates the bylaws, the
standard to apply under this provision is both subjective
(does the complaining unit owner believe the noise to be
unreasonable?) and objective (would a reasonable person
similarly situated deem the noise to be unreasonable?).

Unit owners may not dictate how other owners may live in
their units, such as when to use appliances, watch TV or
listen to their stereos.

Still, if owners create an unreasonable noise in their units
by watching TV or listening to a stereo at an objectively
unreasonable volume, or if they use an unreasonably loud
machine, the board of directors may implement remedies
against such owners for creating a nuisance.

Q: I understand the recent appellate case Palm II v. 2800
Lake Shore Drive Condominium Association prohibits a quorum
of the board or more of conducting board workshops and
communications outside of properly called board meetings,
among other rulings.

However, I have heard that this case is only binding on
condominium associations in Cook County.

Is this correct?

A: The Palm II case is binding precedent on all circuit
courts in Illinois, including the circuit courts in Cook
County.

Under the precedent rules applied in Illinois, a circuit
court must follow the precedent of the appellate court in
its district.

There are five appellate districts in Illinois. If no such
precedent exists, then a district must follow the precedent
of other appellate districts.

Because there are no contrary holdings in the other
districts on the rulings in the Palm II case, the circuit
courts in all five districts must follow the case.

A contrary decision by another appellate district in the
future will affect the applicability of the Palm II case in
that district.

Of course, any future legislation addressing the effects of
the Palm II case would modify the holdings in that case.

Q: What is the rule of law in the Condominium Act on whether
board meeting minutes must be posted on community bulletin
boards?

A newly elected board of directors has stopped this longtime
practice in our association.

A: There is no law that requires a condominium association
to post board meeting minutes in the common elements.

Section 19 of the Condominium Act simply allows a unit owner
to request a copy of board meeting minutes for the last
seven years.

Publication date: Nov 23, 2014

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  Q: I own a condominium in a small association with deeded
parking units. I do not own a parking unit.

Though the parking area is a common element, shouldn't only
the parking unit owners pay to maintain the parking area?

A: In a condominium regime, every unit owner owns a tenant-
in-common interest of the common elements in the proportion
of the owner's unit percentage.

This means every unit owner, including parking unit owners,
is responsible for the pro rata share of maintaining,
repairing and replacing the common elements, wherever the
common elements are.

Thus, it is proper that residential unit owners who do not
own a parking unit are still responsible for their
percentage interest share of maintaining the common element
parking area.

This is no different from parking unit owners'
responsibility for maintaining condominium hallways that do
not directly benefit a parking unit.

Q: I am aware that Section 27 of the Condominium Act
prohibits a declaration from requiring more than 75 percent
unit-owner approval to amend the declaration.

Any idea why the legislature would have enacted such a
requirement since there was no maximum percentage for over
45 years?

A: Though in legislative history there is no discussion of
the reason for the amendment to Section 27 of the
Condominium Act that established a maximum 75 percent unit-
owner approval, the most likely explanation is that some
governing documents of condominium associations contain a
100 percent unit-owner approval to amend the declaration,
which, practically speaking, is almost impossible to obtain.

The legislature was apparently receptive to proposed
legislation that a supermajority of unit owners should be
able to modify their condominium declaration without being
held hostage by a single unit owner or small group of unit
owners who object to a revision or modification.

Given the public policy that a community association is a
form of democratic governing body, it is logical that a
supermajority of unit owners should be able to modify their
declaration, and that unanimous consent of unit owners
should be required only in limited circumstances by statute.

Q: I recently received the annual financial statements for
my condominium association, and the independent auditor
stated that the annual report was prepared on a cash basis
of receipts and disbursements, with that information
provided by the managing agent.

Doesn't the Condominium Act require that condominiums use an
accrual basis of accounting for annual financial statements?

A: The Condominium Act is silent on the issue of the
accounting method that a condominium association must employ
in preparing its annual statements.

Unless the governing documents provide for a specific
accounting methodology, the cash basis methodology is the
most common method used by the overwhelming majority of
community associations in Illinois.

Publication date: Mar 1, 2015

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  Q: My condominium unit is one of two garden-level condos
in a small condo association. Four times in the last eight
years, both garden units have experienced flooding during
heavy rains allegedly because of backed-up sewers. We
approached the board several times, and they merely respond
that this is a "once-every-100-years storm" that causes the
flooding. Obviously, we have flooded many times in the last
eight years, so that is not true. Any advice?

A: The retention of a licensed plumber to analyze the cause
of the problem is the first step to determine the actual
cause of the flooding, which is necessary to determine
whether it is an association expense or a city of Chicago
issue.

Sometimes in these situations, the cause of a flood relates
to the association's common element plumbing pipes coming
into the building, which would mean the board must abate the
problem; however, if the actual cause is the city sewer
system, working with the city to find a solution is the
appropriate step.

Q: I live in a six-unit, self-managed condominium building.
Due to the size of our building, we need everyone involved
with the administration of the association, but one of the
owners barely participates, and he is the treasurer . Is
there anything we can do to ensure all unit owners
participate?

A: There is no basis in the law to require unit owners to
participate in the administration of an association. While
small associations tend to govern by consensus, the
administration of the association rests squarely with a
board of directors.

If the governing documents of a very small association state
that the board comprises the same number of people as there
are units, the solution would be to amend the bylaws to
reduce the number of board directors to three. The net
effect would be to reduce the number of persons required to
administer the association.

If the treasurer refuses to participate regardless of
attempts to encourage him to do so, the board may remove the
treasurer from office with a board vote and approve another
board member to be the treasurer.

Q: I live in a suburban homeowners association. Our
association is exempt from the Common Interest Community
Association Act (CICAA) because it is has an annual budget
of less than $100,000. However, our association is organized
under the General Not-for-Profit Corporation Act of 1986.

I understand that Section 18.5 of the Illinois Condominium
Act governs master associations, but does it also govern
homeowner associations exempt from CICAA?

A: Just because a community association is exempt from the
Common Interest Community Association Act does not mean a
community association is governed by Section 18.5 of the
Condominium Act.

Section 18.5 of the Condominium Act governs master
associations, also known as umbrella associations, not
community associations. Section 18.5 states that a master
association exercises powers over a development comprising
one or more separate condominium associations in a
development.

In the absence of applicability of either CICAA or Section
18.5 to a community association, that association is still
governed by the provisions of its declaration and bylaws,
and the General Not-for-Profit Corporation Act, regarding
everything from powers and duties of the board of directors,
notice of meeting to owners, removal of directors and the
like.

Publication date: Apr 19, 2015

---------------------------------------------------------------
  Q: My elderly parents live in a condominium association
and are having considerable trouble with their front-door
lock. I'm also worried because these locks do not appear to
be sturdy. I asked the board of directors to install a new
lock with a push-button combination, but the board refused
to allow that type of lock. Does the board have the
authority to do this, and is there a party to appeal the
decision?

A: The board of directors administers and controls the
common-element hallway and limited common-element doors.
Uniformity of appearance is of paramount importance for most
associations.

Condominium declarations and bylaws grant the board the
authority to approve any modifications to hallway doors,
which would include door locks. Allowing a single unit to
have a fundamentally different lock system is generally not
desirable from an appearance standpoint.

Most locksmiths can fix a sticking lock or replace the
locking mechanism with a new one, but in the event the lock
cannot be fixed, the board will have to allow a new lock to
be installed identical to the current lock or a
substantially similar model if that lock is no longer
manufactured. The decision of the board on these types of
issues is final.

Q: I live in a condominium and the building's common-element
main water riser burst, damaging various units and the
personal belongings of the unit owners. Is the association
responsible for repairing damage to the common elements,
units and personal belongings?

A: Unless there are provisions in the condominium
declaration to the contrary, the association is responsible
for repairing damage to the common elements, limited common
elements and bare walls, floors and ceiling of a unit, which
is commonly known as the drywall, including a primer coat of
paint.

Wall and floor coverings, such as paint, wallpaper and
hardwood floors, and personal belongings inside the unit,
are a unit owner responsibility to repair or replace and
should be covered by the unit owner's homeowner insurance
policy.

Q: We live in a self-managed town home association. Many
years ago, a reserve study was performed identifying the
useful life of the roofs of many pods of town homes. The
roofs now need to be replaced. Most of the owners are
elderly, and an increase to monthly assessments or a special
assessment to fund new roofs would be burdensome. What can
we do?

A: Ultimately, owners are responsible for the cost to
maintain, repair and replace the common areas through their
assessments, which in this case includes roofs. While the
board may make the determination when and how to repair
components it is required to maintain under the declaration,
the funding for such expenses comes from the owners.

Regardless of how the money is assessed, whether it be from
an increase in regular assessments, special assessment or
even a bank loan, the owners are going to have to pay for
those expenditures at some time.

When an expenditure poses a financial burden to many owners,
it is common for community associations to get a bank loan
to borrow money for the repairs, which is usually repaid
over a longer period than a special assessment. However,
while the immediate financial burden may be lessened with a
bank loan, the owners are still liable for the amount of
money borrowed on their behalf and interest.

Publication date: Jun 28, 2015

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  Q: I live in a condominium association, and our governing
documents prohibit the units from being used for business
purposes. However, the board president does not live in his
unit and uses his unit to operate his business. His business
website even lists the unit address for his business, and
his clients routinely line up outside the building.

The board is unwilling to address this issue. What is a unit
owner's recourse to force compliance with the governing
documents?

A: It is a common restriction in condominium declarations
that business uses are prohibited in residential units. The
board president, like all unit owners, must comply with the
association's governing documents or be subject to the
association's remedies.

Every board member has a fiduciary obligation to enforce the
declaration and bylaws. Board members cannot pick and choose
which provisions to apply to different unit owners.

The failure of the board to systematically enforce a
particular provision gives a strong legal argument that the
board has waived the ability to enforce such provision
against other unit owners, thus, the board may have
unwittingly waived the prohibition on business uses against
other similar uses. Additionally, board members may subject
themselves to breach of fiduciary duty claim for knowingly
failing to enforce the association's governing documents.

A unit owner's recourse would be to file a declaratory
lawsuit seeking a court order to force the board to enforce
the governing documents and prohibit the business use and
order that the unit owner cease operating a business in his
unit.

Q: I live in a condominium association, and the rules and
regulations allow overnight parking on the common element
driveway. A unit owner has parked an oversize vehicle on the
driveway overnight for over a year. Many owners are
complaining and want the board to prohibit overnight
parking. If the board revises its rules to prohibit
overnight parking, is the unit owner who has been parking
there grandfathered and exempt from this new rule?

A: Under all condominium declarations and applicable law,
the board controls and administers the common elements in
any reasonable manner it deems fit. It is squarely within
the authority of the board to modify its rules to prohibit
overnight parking on its common element driveway.

All rules must be enforced prospective in nature. While
there could be some factual circumstances relating to the
adoption of a new rule that dictates a unit owner's conduct
could be grandfathered, such a concept would not apply to
allow a unit owner to park overnight on a common element
driveway in perpetuity merely because he was parking there
before the new rule was adopted.

The unit owner would not be subject to fines or remedies for
past conduct notwithstanding the volume of past unit owner
complaints.

Q: My condominium association's rules and regulations
require that the association be named as an "additional
insured" on each unit's homeowners' insurance policy. I am
concerned that having the association named as an additional
insured on my policy will leave me personally liable for any
and all injuries that occur on the property. Am I being
needlessly worried?

A: It is common for condominium associations to demand that
the association be named as an additional insured on
insurance policies for various reasons. Adding an
association as an additional insured does not increase
potential liability for unit owners. It merely allows the
association to assert a claim against the insurance policy
if a loss occurs directly related to the insurance policy
coverage.

A personal injury that occurs on the common elements would
be unrelated to the unit's homeowner's association policy;
thus, even if the association submitted a claim against the
policy, it would be denied because the unit's insurance
policy does not provide insurance coverage on the common
elements.

Publication date: Aug 30, 2015

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  Q: I am a veteran and am trying to refinance my
condominium unit through a mortgage backed by the Department
of Veterans Affairs. However, our condominium declaration
includes a right of first refusal, and the VA has stated
that this provision must be eliminated from the condominium
declaration before the VA will certify the association
property as eligible for VA mortgages and refinances. The
declaration can only be amended by two-thirds vote of the
unit owners, and the board is not interested in spending the
time or money to attempt to obtain the requisite unit owner
approval to amend the declaration.

Is there any way a unit owner can force an association to
amend its declaration?

A: Notwithstanding that a condominium property cannot be VA
approved if there is a right of first refusal in the
condominium declaration, a single unit owner cannot force
the board or other unit owners to amend the condominium
declaration or bylaws. When a unit owner purchases in a
condominium property, the unit owner buys his/her unit
subject to the existing provisions of the declaration and
bylaws, whatever those terms may be, as long as such
provisions are not inconsistent with the law.

If 20 percent of the unit owners in the association are
interested in amending the declaration, such percentage of
unit owners (by unit percentage) call a unit owner meeting
to obtain the required unit owner approval themselves to
amend the declaration. However, at least two-thirds of the
unit owners will be required to vote in favor of amending
the declaration in your situation.

Q: Must the board of directors of an Illinois condominium
association elect officers?

A: Sections 18(c)-(e) of the Condominium Act require the
bylaws of all condominium associations in Illinois to elect
the officer positions of president, secretary and treasurer.
Additionally, Section 108.50 of the Illinois Not-for-Profit
Corporation Act states that a corporation shall elect
officers as provided in the bylaws, and the annual report
for the state of Illinois for not-for-profit corporations
requires the identification of officers. Thus, a condominium
board must elect a president, secretary and treasurer. Also,
most condominium bylaws require the election of officers.

It is strongly recommended that a condominium board elect
officers. Intentionally ignoring corporate formalities could
jeopardize the board's coverage of directors' and officers'
liability insurance, which is very undesirable.

Q: I am the former president of our condominium association
and served on the board for 11 years. I question actions
that occurred at our recent annual meeting. I have requested
a copy of annual meeting minutes but was told that I am not
entitled to annual meeting minutes until the minutes have
been approved, which will not occur for a year (which is the
next scheduled unit owner meeting). Is this true?

A: Section 19 of the Condominium Act states that every unit
owner is entitled to inspect a copy of board meeting minutes
and unit meeting minutes for the immediately preceding seven
years. However, until such meeting minutes are approved,
they do not officially exist. Thus, unit owners are only
entitled to meeting minutes that have been approved.

If there is a question about the voting at an annual
meeting, Section 19(a)(8) of the Condominium Act allows unit
owners to inspect ballots and proxies for all matters voted
on by unit owners of the association during the immediately
preceding 12 months if such unit owner states a proper
purpose. Unit owners can verify the election results before
waiting for the annual meeting minutes if the board is
unwilling to share such information.

Publication date: Sep 27, 2015

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  Q: I live in a condominium association where the board of
directors recently levied a significant special assessment
for repairs to the building to address developer
construction deficiencies. This repair work is underway, and
simultaneously the association filed suit against the
developer.

If a financial settlement is received from the developer,
does the association have an obligation to refund the
settlement amount (less legal fees and other costs
associated with the lawsuit) to the unit owners?

A: Condominium boards have the authority to bring
construction claims against a developer of the condominium
property, and they also have authority to determine how to
use or allocate any financial proceeds from a financial
settlement with the developer or upon collection of a
judgment post-trial. There is no legal requirement that the
board refund to unit owners, pro rata, net proceeds of any
financial settlement.

While the board could do so, it is also within the
discretion of the board to transfer such amounts to the
reserve funds (for future repairs of the defective
components) or allocate a portion, or all, of the financial
settlement to the next year's budget. Most commonly, boards
transfer settlement funds to the reserve account.

Q: I am a condominium unit owner and have requested our
management company provide me contact information on unit
owners and lessees in case of an emergency. The management
company refuses to provide such information due to privacy
concerns. Other management companies in the past provided
this information to us.

A: While the association's rules and regulations may require
unit owners and occupants to provide occupancy information
to the board and/or management for emergency purposes, unit
owners in the association are not entitled to such
information. At most, pursuant to Section 19 of the
Condominium Act, unit owners are entitled to the name of
unit owners, their addresses and weighted vote upon written
request stating a proper purpose.

Even if a proper purpose is stated, neither the board nor
management would be required to give the unit owners'
telephone numbers, email addresses or tenant information.

Q: I live in a community association, and our board recently
revised its rules and regulations. The new rules allow
parking, recreation and parties in a common area driveway;
however, our declaration expressly prohibits such activities
in the common area driveway. Can the board do this?

A: The board of a community association (or condominium
association for that matter) cannot adopt rules that are
expressly contradictory to the association's declaration and
bylaws. Simply, the declaration and bylaws will control in
the event of an inconsistency, and the rule will be
unenforceable in a court of law or equity.

If a board insists on enforcing an unenforceable rule after
notification the rule is unenforceable, the unit owners have
the remedy of filing a declaratory lawsuit seeking
invalidation of such rules. However, that option is most
likely not cost-effective for individual unit owners. Of
course, the unit owners could seek to elect a majority of
directors to the board to only enforce rules that comply
with the association's governing documents and applicable
law.

Publication date: Dec 20, 2015

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Q: I am a unit owner in a high-rise condominium off Michigan
Avenue. Our condominium declaration does not contain any
minimum lease term provisions, but like most declarations,
prohibits business uses in units.

I have been renting my unit on Airbnb, however, I just
received a notice of violation from the condominium
association stating that Airbnb rentals violate the
business-use prohibition. The notice requires me to appear
at a fine hearing. Is the board right?

A: In addition to a minimum lease term in the association's
governing documents, there are other provisions that the
board may enforce to prohibit short-term rental uses and
levy fines for violations.

Examples of common condominium declaration provisions that
could subject Airbnb hosts to fines or an injunction lawsuit
for a violation are:

* Minimum lease terms of more than 30 days.

* An express provision prohibiting rentals for "hotel or
transient purposes."

* Business use in the sense that shared-housing or short-
term rental hosts must either register their available unit
and/or obtain certain licenses (which is the case when hosts
operate more than one shared housing unit) with the Chicago
Department of Business Affairs and Consumer Protection.

There is legal precedent that says boards may interpret
their governing documents. Therefore, they may deem such
rentals a business use based on the facts.

Q: I am on a board of a self-managed condominium association
and a unit owner has filed a claim with the Illinois
Department of Human Rights against the association for
alleged discrimination. Section 22.1 of the Condominium
Property Act requires the association to disclose "any
pending suits or judgments in which the unit owner's
association is a party" to prospective purchasers.

My question is whether the claim is a "suit" under the
Condominium Property Act, even though it is not filed in the
court system.

A: While there is no definition of "suit" as it relates to
Section 22.1, it is widely accepted that any claim in a
judicial or quasi-judicial forum, such as the state
Department of Human Rights, would be deemed a "suit" that
requires disclosure because the association is a named
party. As such, the association should disclose such claims
on 22.1 disclosures.

However, if the association is not a named party to a suit,
but its managing agent is the named party, the association
would not be required to disclose -- but it could do so if
the board chooses, because it is related to the association.

Q: I am a prospective purchaser in a three-unit, new
construction condominium project in Chicago. Section
13-72-050(A) of the Chicago Condominium Ordinance requires a
property report be distributed to purchasers of a
condominium project of more than six units.

However, Section 13-72-050(B) states that for any
condominium projects, regardless of the number of units,
where a declaration is recorded on or after Jan. 1, 2012,
the developer must comply with subsection (A) of the same
section (which requires the property report).

So for new condo projects after 2012, are property reports
required for a three-unit project?

A: The answer is yes. For any condominium project in the
city of Chicago where a declaration is recorded on or after
January 1, 2012 -- regardless of the number of units -- the
developer must provide prospective purchasers with the
mandated property report. In fact, in 2012, the Chicago
Condominium Ordinance was amended to require that a
condominium disclosure summary also be provided to
prospective purchasers.

Publication date: May 14, 2017

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  Q: I own a condominium unit in Chicago but only reside in
the unit approximately half of the time. I have a suburban
home where I reside the remaining days. Nonetheless, I pay
my assessments and real estate taxes. Our parking lot is a
common element to which the board allocates parking spaces
to unit owners for use; however, the board has a policy of
giving priority to resident unit owners who reside full
time. Can they do this?

A: Section 18(b)(2) of the Condominium Act states an
association shall have one class of membership, which under
a strict interpretation by a court is likely a basis to
prevent the association from differentiating between
resident and nonresident owners regarding priority parking
in the common element parking lot.

However, a case from an appellate court in the state of
Pennsylvania, which is not binding authority on Illinois
courts but which is persuasive authority, holds that
resident owners may receive priority over nonresident owners
if the allocation scheme includes a mechanism by which
nonresident owners receive some monetary credit because they
are also paying assessments to maintain the parking areas
they may not be able to use. This result could be
accomplished by collecting parking fees from unit owners
allocated parking spaces.

The case is Lyman v. Boonin (1990), which was reversed by
the Supreme Court of Pennsylvania but on a different issue
of whether resident owners may receive priority for parking
spaces.

Q: I reside in a townhouse community association built over
20 years ago. Recently, the board of directors unilaterally
revised the unit percentages of the town homes without
obtaining a new survey of the unit or other objective basis.
Since my unit was one of the units with an increased unit
percentage, my assessments have increased. Is this allowed?

A. Section 1-60 of the Common Interest Community Association
Act allows two-thirds of the members of the board to amend
the declaration to correct errors or omissions or
scrivener's errors, such as the unit percentages do not
equal 100 percent. In the absence of clear evidence of an
error, omission or scrivener's error, the board of directors
does not have the authority to simply revise unit
percentages. There must be some evidence of an error or
omission to substantiate such an action.

Q: I live in a community association where past budgets had
included a line item for reserve funds, but this year's
budget only shows a line item for an operating contingency
instead of a reserve fund. The alleged basis of this change
relates to the board determining that since exterior
maintenance of the town homes is an owner's responsibility,
a reserve fund is not needed. How should this issue be
handled?

A. Section 1-45 of the Common Interest Community Association
Act states that members of a community association must
receive a copy of the budget at least 30 days, but not more
than 60 days, prior to the adoption, with an indication of
which portions are intended for reserves, capital
expenditures or repairs or payment of real estate taxes.

Although exterior maintenance of town homes may be an owner
responsibility, that is not the determining factor of
whether a reserve fund is required. Simply, whether a
reserve fund is required is dictated by the bylaws. It is
extremely rare that a community association's bylaws do not
require reserve funding.

The owners should seek board clarification of whether the
operating contingency fund is actually a reserve fund with
different wording in the line item of the budget.

Publication date: Dec 27, 2015

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  Q: I live in a condominium association where the board is
a dictatorship that stifles communication with residents.

Frankly, there is no mutual respect between the board and
residents. The board acts with impunity, and property values
have plummeted. It is cost-prohibitive for the unit owners
to retain an attorney to assert grievances against the
board.

We need intervention from a greater source.

A: It is unfortunate that such a toxic situation exists
between a board of directors and community association
members. If the board is not complying with its obligations
under governing statutes and documents, the unit owners
possess certain rights, but they may need to retain an
attorney to assert such rights, as applicable.

Alternatively, the unit owners are left with what could be
affectionately referred to as "regime change" at the next
annual election. This means that if the ownership feels that
the current board members are not the best representatives
for the association, the ownership can elect new directors
who share the unit owners' viewpoints.

Q: Halloween is over, but we have a creepy problem. When a
board or committee member dies, our board of directors seeks
donations from the owners to erect memorials around the
common areas such as plaques, trees and benches with names
of the deceased.

Regular residents do not even get a card. It puts individual
owners in an awkward position to protest the memorials for
fear of being viewed as insensitive.

Is the board overstepping its bounds here?

A: Under applicable statutes and governing documents, a
board of directors has the authority to administer the
common areas in its reasonable judgment. As such, the board
has the authority to allow the installation of memorial
plaques in the common areas if it so desires. While the use
of common expense funds for such a purpose would be highly
questionable, if not prohibited, funding from owner
donations to pay for such memorials is not prohibited.

The balance that boards must achieve is to administer their
property in the best interests of the community. While the
installation of memorials around the common areas is highly
unusual, depending on the contributions of the people
memorialized and the tastefulness of the memorials, such
honors may not be inappropriate; it is for each community to
decide.

Q: I live in a condominium association that employs numerous
individuals, such as the janitorial staff. Does Obamacare
mandate condominium associations to provide health care to
janitors and other employees?

A: The Patient Protection and Affordable Care Act, known as
Obamacare, requires "large" employers to provide health plan
coverage meeting certain guidelines to their employees or
pay a penalty tax to the federal government. Large employers
are those that employ at least 50 full-time (or full-time
equivalent) employees. Full-time employees are employees who
work at least 30 hours on average each week.

Thus, unless a community association employs 50 or more
full-time employees, Obamacare provisions would not apply.
Even if an association does have 50 or more full-time
employees, the Obamacare "play or pay" requirement has been
delayed until Jan. 1, 2015, from its original effective date
of Jan. 1, 2014.

Publication date: Nov 17, 2013

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  Q: I bought a condominium unit five years ago, and after
very heavy rainstorms, I experience water coming into my
unit in various places throughout the unit via the ceiling.
Each year, the board says it will fix the leaks, but I still
experience them regularly.

I cannot even sell my unit due to the leaks. What can I do
to force the board to take appropriate action to repair
them?

A: The board of directors of a condominium association has a
fiduciary obligation to maintain, repair and replace the
common elements. This means the board must take appropriate
measures to prevent water infiltration from the exterior
common elements into the units.

Besides demanding in writing the board procure an
appropriate engineering analysis to determine the cause of
the water infiltration, and recommendations for appropriate
repairs, if a board continues to refuse to fix the common
elements, a unit owner possesses a viable cause of action
for a declaratory lawsuit against the association to force
the board to make necessary repairs.

In certain circumstances, individual board members could be
liable for breach of fiduciary duty for refusing to properly
maintain, repair and replace the common elements.

Q: At our last condominium board meeting, the board
president stated the dollar amounts received as bids for a
large renovation project from various vendors. Our property
manager then stated that one of the vendors said they would
lower their bid to match the lowest bid so they would get
the job. This explains why we always have the same vendors.
I am concerned about whether the board is acting unethically
or improperly in handling bids in this manner.

A: The best practice to solicit bids for a large renovation
project is to have all contractors bid on a specific scope
of work based on detailed plans and/or specifications.
Customarily, the scope of work is prepared by an architect
and/or engineer. This allows the board to compare apples to
apples, because each contractor is bidding on the same work.

It is not unethical or improper for a board to renegotiate
price with contractors after the board has received all
bids; but as a business proposition, the board should ensure
that a contractor that reduces its price did not alter the
scope of work in any manner.

Q: I live in a high-rise condominium building. Recently, our
board adopted a policy that the cost to replace HVAC
components in each unit is the responsibility of the unit
owner. Is this proper?

A: Components within the boundaries of a unit are properly a
unit owner's cost to maintain, repair and replace. To the
extent certain components of an HVAC system are on or in a
portion of the common elements, but exclusively serve
individual units, such components are classified as a
limited common element.

Most condominium declarations shift the cost to maintain,
repair and replace limited common elements appurtenant to a
unit back to the affected unit owner. Thus, unless the
condominium declaration expressly provides for maintenance,
repair and replacement of the HVAC components as an
association common expense, such costs are a unit owner's
expense.

Publication date: Dec 8, 2013

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  Q: I live in a self-managed condominium association. What
are the advantages and disadvantages of hiring a property
management company to manage the association?

A: Section 18.4 of the Condominium Act and condominium
bylaws grant the board of directors the authority to hire a
property management company to help the board administer the
association.

The advantages of hiring a property management company are
many. A management company provides the board and the unit
owners with invaluable assistance in keeping the
association's books and records, processing unit owner
assessment payments, managing accounts payable, coordinating
the work of vendors and contractors, sharing experience in
managing a community association, knowing the legal
requirements a board must comply with to avoid unintentional
mistakes, etc. There are no disadvantages per se.

The primary issue for a board is whether the association is
willing to incur the cost involved in retaining a property
management company.

Q: I live in a midrise condominium association, and due to
the recurring need of the board to access units for repairs,
the board is considering requiring unit owners to deposit
keys with the management company.

Many unit owners do not want to deposit keys with the
company. Does the board have the authority to require this,
and are we subject to a fine if we refuse to comply?

A: It is common for older condominium declarations and
bylaws to require unit owners to deposit a copy of their
unit entry key with the board and/or its managing agent.
Such provisions are valid and enforceable, and refusal to
comply with the requirement could subject unit owners to
fines. Also, be advised that pursuant to the board's rule-
making authority in Section 18.4(h) of the Condominium Act,
the board can adopt rules and regulations requiring unit
owners to deposit entry keys to the board or its managing
agent.

Such rules will be deemed reasonable and enforceable and
will subject unit owners to fines for noncompliance.

Unit owners should be advised that pursuant to Section
18.4(j) of the Condominium Act, the board or its
representative is entitled to immediate unit access in case
of an emergency. The board is also entitled to access units
upon reasonable notice for nonemergencies.

If the unit owner is not home during an emergency, the board
has the authority to enter a unit forcibly, and the unit
owner may be assessed the cost for such entry. If a managing
agent holds unit entry keys, door and lock damage and the
costs of a forcible entry can be avoided.

Any policy requiring delivery of unit entry keys should be
accompanied by appropriate security protocols.

Q: I am a unit owner and regularly attend condo board
meetings. Am I allowed to record a meeting?

A: Section 18(a)(9) of the Condominium Act expressly allows
unit owners to record board meetings by tape, film or other
means.

Nonetheless, to avoid potential violations of any applicable
audio and video recording laws, unit owners should not
secretly record board meetings, but should advise the board
that the meeting is being recorded as allowed by the
Condominium Act.

Publication date: Feb 23, 2014

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  Q: Is there a mandated method of communication between
community association members and board members? I prefer to
send emails to each director so I know each board member got
my communication.

However, the board members refuse to reply to emails and
state they will only accept members' telephone calls. This
is hypocritical, because board members use mass email to
communicate with members.

A: There are no provisions in the Condominium Act for
condominium associations, or the Common Interest Community
Association Act for community associations, that regulate or
require a method of communication between community
association members and the board of directors.

Without question, community association members can attend
board meetings to communicate with the board.

The next most common methods of communicating with the board
are delivering to the managing agent a letter addressed to
the board or sending letters to board members directly.

It is odd that a board would prefer that community
association members call their telephone numbers because of
the possibility of being contacted during inopportune times,
but if that is how the board wants to communicate outside of
a board meeting, use it.

Still, for any issues of importance, it is recommended to
put your issue in writing so there is a record.

Q: I live in a homeowners association and recently got a
newsletter stating that because of a lack of quorum, the
annual meeting was not held.

There was one position open for the election, so the board
filled the board vacancy with a board vote. Isn't the annual
meeting required to be held?

A: If not enough owners attend an annual meeting such that
there is no quorum of the owners, the annual meeting cannot
be legally held.

Board members continue to serve in their capacity as board
members until replaced at an annual meeting.

Section 1-25 of the Common Interest Community Association
Act does allow a board to fill vacancies on its panel until
the next annual meeting of the membership or until members
holding 20 percent of the votes of the association request a
meeting of the members to fill the vacancy for the balance
of a board term.

Therefore, either the board or 20 percent of the owners can
call an annual meeting. However, the issue in this case
appears to be lack of owner participation, not the board
refusing to call an annual meeting.

Q: I live in a single-family home where the development is
subject to the Condominium Act. Pursuant to the declaration,
roads, ponds, landscaping and other common elements are
maintenance obligations of the association.

The current board has decided that to reduce the budget, and
thus assessments, it will now require unit owners to cut
their own grass and shovel their own driveway.

This seems improper. Many unit owners moved to this
community to avoid performing landscaping maintenance and
snow removal. Can the board simply do this?

A: Under Illinois law, a board of directors has a fiduciary
obligation to comply with, and enforce, the terms of its
condominium declaration and bylaws.

The board may not simply choose to ignore some provisions of
the declaration while enforcing others. Pursuant to Section
18.4(a) of the Condominium Act, the board must maintain,
repair and replace the common elements.

Failure to do so could subject the association to a
declaratory lawsuit to force it to maintain the common
elements.

Publication date: Mar 23, 2014

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  Q: I serve on the board of a town home association, which
has a declaration and rules that govern it.

In the past, the board has not strictly enforced the
governing documents, and as a result, some homeowners have
modified the exterior of their town homes.

They have hung items from the bricks and flowerpots from
fascia; have violated pet restrictions; and have done
maintenance that is an association's responsibility.

Can the board still enforce its governing documents, even if
it has failed to do so strictly for a time?

A: All homeowners in a community association bought their
home subject to the recorded declaration and bylaws.

Declarations in town home communities commonly restrict
owners from modifying their homes' exteriors.

Also, community association boards are empowered to adopt
rules to supplement the recorded declaration and bylaws.

Despite what appears to have been slow enforcement of the
association's governing documents, the board has not
permanently waived its right to enforce them, although
relevant facts could present a legal issue on a specific
item for the board.

The board may demand that unit owners return their homes'
exteriors to their original conditions, stop doing
maintenance that is an association's responsibility and
require compliance with the association's rules.

Owners' failure to do so may result in fines against them.

Q: I was recently elected to the board of my condominium
association.

I have learned that our association landscapes unmaintained
property next to our association for aesthetic purposes.

I question the board's authority to spend common-expense
funds on land that is not part of the common elements,
especially because these funds are urgently needed for new
roofs.

A: Section 18.4(a) of the Condominium Act grants a condo
board the authority to provide for the operation, care,
upkeep, maintenance, replacement and improvement of the
common elements.

Most condominium bylaws mirror that concept.

Therefore, unless the declaration or bylaws contain some
broad language to expand the board's authority over the use
of common-expense funds, condominium boards are restricted
on the use of such funds to maintain, repair and replace
common elements.

Q: Our condominium bylaws contain a limitation on the board
spending more than $10,000 without a two-thirds vote of the
unit owners, except for maintaining, repairing and replacing
current common elements or emergency repairs.

Our association board has spent almost $250,000 to build a
workout room and meeting room, and it is replacing the
risers and redecorating the hallways for millions of
dollars, all paid for by a special assessment.

Can the board do this without a unit owner vote?

A: Section 18.4(a) of the Condominium Act allows a board to
make expenditures by a board vote only for maintaining,
repairing and replacing current parts of the common
elements, notwithstanding a spending limit in a declaration
or bylaw.

Thus, the capital expenditure provision in the bylaws would
not require a unit owner vote to replace current risers or
redecorate the hallways because such work is a valid
exception to the spending limit.

Still, regarding building workout and meeting rooms, Section
18(a)(8) of the Condominium Act states that additions or
alterations to the common elements that are separately
assessed are subject to the approval of two-thirds of the
votes of all unit owners.

Thus, to the extent the association did not have a current
workout room or a meeting room, and the board spent almost
$250,000 paid for by a special assessment, a two-thirds vote
of the unit owners was required for expenditures pursuant to
the spending limitation in the bylaws and Section 18(a)(8)
of the Condominium Act.

Publication date: Aug 10, 2014

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  Q: Because of personal safety concerns, our board would
like to amend our declaration and bylaws to prohibit unit
owners from leasing their unit to a person with a criminal
record, including, but not limited to, pedophiles, rapists
or other similar heinous criminals.

Would such an amendment be enforceable?

A: Such an amendment would not be enforceable based on
various principles of real property and anti-discrimination
laws.

This type of amendment would be deemed an unreasonable
restraint on alienation, a legal concept that stands for the
proposition that the owners' property rights may not be
unreasonably restricted.

An aggressive position is for an association to adopt
leasing rules and regulations requiring unit owner-landlords
to obtain criminal background checks on prospective tenants
for the unit owner-landlord's use, not the association's
use, with the hope that the unit owner-landlord makes a wise
decision with respect to prospective tenants.

An association cannot reject a unit owner's prospective
tenant if it does not approve.

While there is no legal basis for the association to prevent
a sex offender from being able to lease a unit in the
association, pursuant to the Illinois Sex Offender and Child
Murderer Community Notification Law, the board may convey by
mail to residents certain information regarding the
existence of a registered sex offender in the association.

The statute does not impose any liability on the association
or the board if it does not provide such information.

Q: I live in a four-unit condominium, and each unit owner
has one deeded parking unit in the garage. There is an area
in the garage that could fit a fifth car, and a unit owner
would like to buy that space from the association. However,
the plat of survey attached to the declaration shows only
four parking units.

May the association sell part of its common elements to
create a new parking unit?

A: Pursuant to applicable case law and the Condominium Act,
to convert part of the common elements into a new deeded
parking unit requires 100 percent unit owner approval and,
depending on the declaration, most likely lender approval.

Further, a declaration amendment with a revised plat of
survey would need to be prepared and recorded and the unit
percentages regarding all the units would also need to be
revised.

After the parking unit is created, Section 18(b)(13) of the
Condominium Act requires the approval of at least two-thirds
of the unit owners to sell a unit on behalf of all unit
owners, which should not be an issue if the 100 percent
threshold can be met.

Q: Our condominium board uses voting by secret ballot.
However, the association has no procedures of any kind to
verify the signatures of the unit owners. Further, the
property manager counts the ballots and does not allow any
of the candidates to be in the room when the votes are
counted. Are these procedures valid?

A: Section 18(b)(10) of the Condominium Act allows a
condominium association to conduct board elections by secret
ballot whereby the ballot is marked only with the percentage
of interest for the unit and the vote itself.

However, that same section also requires the board to adopt
rules and regulations to verify the status of the unit owner
casting a ballot and further states that candidates shall
have the right to be present at the counting of ballots.

Therefore, the board must adopt rules to verify the unit
owners' signatures, and candidates must be allowed to be
present at the counting of ballots.

Thus, the board must adopt rules to verify unit owners'
signatures, and candidates must be allowed to be present
when ballots are counted.

Publication date: May 25, 2014

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  Q: We recently bought a condo unit on the top floor of a
three-story building. The association provides cable TV to
each unit, but we prefer satellite TV service.

The association does not allow satellite dishes on the
common elements. But next to our back door is a wooden porch
that is part of the back stairs to the ground level.

Are we entitled to install a satellite dish on the back
porch?

A: Federal law, through the Federal Communications
Commission, allows condominium associations to prohibit
satellite dishes on the common elements; however, FCC
regulations allow residents to install a satellite dish on
their exclusive-use area, subject to the board's ability to
adopt reasonable safety rules and/or dish-camouflaging
rules.

FCC regulations also allow an association to prohibit a
resident from installing a satellite dish on their
exclusive-use area if the association offers the same
satellite services at the equivalent cost and quality the
resident could get from a satellite dish provider.

In a condominium context, an exclusive-use area equates to a
limited common-element area, commonly balconies, terraces or
decks. The issue is whether the back porch is a limited
common element so defined in the declaration or a common-
element porch system. If the porch is part of the common
elements, a resident may not affix a satellite dish to the
porch.

Merely because a unit's back door leads to a porch does not
make the porch an exclusive-use area for the unit.

Q: I recently moved into a town home community in the
suburbs. In 2010, the original developer lost the project,
and the association's remaining unsold units were taken over
by the developer's lender, who then sold the units to
another developer.

There have been only three board meetings since 2010. What
are the requirements for a community association to hold
board meetings and annual meetings?

A: In addition to a community association's declaration and
bylaws, community associations are governed by the Common
Interest Community Association Act. Section 1-30 of the act
requires an association board to meet at least four times
annually. Section 1-40 requires an annual meeting to elect a
board of directors.

Q: Our condominium association has a contract for bulk-
service cable and Internet on a fixed monthly cost per unit.
Several unit owners work from home and have demanded that
the board increase the Internet service bandwidth because
they are dissatisfied with the Internet speed for their
uses.

Does a condominium association have an obligation to provide
commercial-level Internet services for unit owners?

A: Section 18.4(o) of the Condominium Act allows a board, in
its sole discretion, to buy cable television or Internet
service in bulk for the units on an equal-cost-per-unit
basis.

The cost of bulk service is substantially less on a per-unit
basis than unit owners buying cable and Internet as an
individual.

The number of cable television stations and/or speed of the
Internet in the bulk-service agreement is within the
discretion of the board for what it determines to be in the
best interest of all unit owners, not a handful of unit
owners.

Simply, the board is not obligated to provide a certain
minimum number of stations or Internet speed.

As a practical matter, unit owners are always given the
option by the service provider to buy premium cable stations
and/or higher-speed Internet at their own cost.

Publication date: Sep 28, 2014

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  Q: I have two questions about condominium board meetings.
I own a condo unit, but the board has prohibited me from
attending board meetings because I am not a board member.
Further, the board consists of nine directors, but I have
learned that the president votes on motions for himself and
non-present directors, insisting he has a proxy for their
board vote. Is the board acting properly?

A: It is improper to prohibit unit owners from attending
open portions of board meetings pursuant to Section 18(a)(8)
of the Condominium Act, and to do so exposes the board
members to a breach a fiduciary duty claim. Unit owners have
an express right to attend board meetings. Unit owners do
not have a right to speak during board meetings.

Regarding the second question, there is no basis in the law
for the president of the board to cast votes for directors
who are not at board meetings. There is no mechanism for
board members to deliver a proxy to other board members to
cast their votes on an issue. Simply stated, board members
must attend a meeting in person or by other means such as
Skype or speakerphone to be entitled to vote as a director.

Q: I am a board member for a small condo association. We
meet six times a year and, thus, occasionally need to make
decisions by email in between meetings. We are careful to
make sure that all such decisions are unanimous. Should we
as a board ratify such decisions at the next board meeting
or do those interim decisions stand on their own?

A: The answer is neither. While condo boards historically
would make decisions by unanimous consent outside of a
properly called board meeting pursuant to provisions
contained in the Illinois Not-for-Profit Corporation Act,
subsequent to the recent Palm II v. 2800 Lake Shore Drive
Condominium Association appellate case, email or other
written voting -- whether unanimous or not -- violates the
Condominium Act and to do so subjects board members to a
breach of fiduciary duty claim.

Q: I live in a four-unit condo building where the developer
still owns two units. Does the developer get two votes for
board decisions, and, if so, what happens in the event of a
tie?

A: Even in a small condo association, the size and election
of the board are dictated by the provisions of the
association's bylaws. While possible, it is unlikely there
is an even number of directors to be elected to the board.
Most bylaws contemplate an odd number of directors to avoid
a tie vote.

In those rare circumstances where there is an even number of
directors, the bylaws should contain a dispute resolution
provision in the event of a tie; otherwise, the motion at
issue does not pass because of a tie vote.

Publication date: Oct 26, 2014

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Q: I am a unit owner in a condominium association and
recently received a letter from the management company
advising unit owners that the Illinois Condominium Property
Act has been amended to allow unit owners to request
telephone numbers and e mail addresses of other unit owners
in the association beginning Jan. 1. Is this information
correct, and can unit owners opt out of providing such
information?

A: Illinois House Bill 189 was adopted in 2017 and will
become effective Jan. 1. The legislation revises many
aspects of the Condominium Property Act; Section 19 was
amended to require condominium associations to keep
telephone numbers and email addresses of unit owners and
provide such information to a requesting unit owner. The
requester does not have to state a proper purpose.

The legislature attempted to mitigate potential abuse of
such information by allowing the board to require a written
statement from the requesting unit owner noting that such
information will not be used for a commercial purpose. The
new language of Section 19 defines commercial as "for sale,
resale, or solicitation or advertisement for sales or
services."

It may be in unit owners' best interest to designate a phone
number and email address they wish to be used for such
requests, perhaps including a newly created email address.

Many community association boards, unit owners and
management companies have expressed concern about this new
law. Some perceive it as infringing upon the privacy of unit
owners who do not want to give out their telephone number or
email address. Given that this legislation is now law,
condominium associations must comply with it. However,
individuals who are opposed should contact their elected
officials demanding an opt-out amendment to this new
requirement for unit owners who do not want such information
provided.

Q: I live in a suburban condominium association. Each unit
has a designated garage parking space. Many residents no
longer drive and so rent their garage spaces. However, our
management company recently sent a letter to all unit owners
that Illinois law prohibits a unit owner from renting the
parking space assigned to their unit. Does Illinois have
such a law?

A: There is no Illinois statute or law that specifically
prohibits leasing of condominium parking spaces (or even
residential units). Any restrictions on leasing a parking
space would be contained in the governing documents of the
association. If the declaration and bylaws do, in fact,
restrict leasing of parking spaces, then the management
company may have been correct that parking spaces may not be
rented, but the stated basis was incorrect.

Q: I purchased a condominium unit approximately 10 years
after it was constructed. Because of a recent board
statement that a special assessment is imminent, I reviewed
my unit's percentage of ownership. I noticed a significant
discrepancy between mine and other units with the same
square footage and view. Is there a way to have my unit's
percentage of ownership adjusted?

A: Section 4(e) of the Condominium Property Act details how
a condominium developer sets unit percentages, which is
based on the value of each unit. Unit percentages are set by
the initial offering price of a particular unit divided by
the total value of all the initial unit offering prices.
Section 4(e) goes on to state that the unit percentages
cannot be amended without unanimous consent of the owners.

While square footage and a view are the primary factors in
value, they may not have been the only factors considered
when setting the initial value of the unit in question.

Unless the developer provides evidence of an error or
omission in the original setting of the unit percentages
(which is unlikely), there is no basis to conclude that the
difference in unit percentages was an error just because
units of similar size or view have different unit
percentages. If such evidence is obtained, the board could
correct the error by a declaration amendment according to
Section 27(b)(1) of the Condominium Property Act, which
allows two-thirds of the board to do so. However, per
Section 27(b)(3), the unit owners could initiate a series of
procedures to reject such board action.

Publication date: Nov 12, 2017

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  Q: I own a garden-level condominium unit and discovered
water infiltration coming into my unit. The exact source of
the water infiltration was not apparent so the condominium
board recommended I install an expensive drain system,
possibly due to a rise in the water table. I did so,
however, years later, the issue continues sporadically.
After hiring a contractor to tear apart my drywall and the
insulation to investigate, the culprit of water penetration
is actually through the exterior cinderblock wall below
grade.

The condominium board denies any responsibility and refuses
to seal the exterior wall to prevent water infiltration. Any
thoughts?

A: Whether above-grade, or below-grade, a condominium board
has the obligation to maintain, repair or replace the
exterior common elements to prevent water from entering
units. A knowing failure to do so will subject the board
members to a breach of fiduciary duty and the association to
a claim for property damages.

A written report from a qualified contractor identifying the
cause of the water infiltration should be prepared and
delivered to the board and the managing agent with a demand
that the board abate the water infiltration into the unit. A
proposed solution should also be included in the report.

If the board continues to refuse to address this issue, the
unit owner may file a declaratory lawsuit seeking a court
order to force the board to maintain, repair and replace the
exterior common elements to prevent water infiltration into
the unit, and for any damages the unit owner incurred.

Practically speaking, an alternative to at least stop the
water infiltration may be for the unit owner to request
board permission to seal the below-grade, common element
exterior wall himself and the unit owner can decide whether
the benefits outweigh the costs to pursue the association
for the remedial costs.

Q: I was recently elected to my condominium association
board. While campaigning, I endorsed openness and unit owner
involvement through committees. At the first meeting of the
new board, the board president declared our association will
be forming commissions instead of committees. What is the
difference?

A: To avoid board member burnout and spread the
responsibility for administration of the association to more
people, committees and commissions are an invaluable tool to
assist the board with the operation of the association.

Practically speaking, commissions and committees are created
by the board to gather information and analyze an issue and
make recommendations to the board.

From a legal perspective, the Illinois Not-for-Profit
Corporation Act requires a committee contain two or more
board members whereas an advisory board or commission may be
created without board members. Boards should be mindful of
the recent Palm II case, which states that a quorum of the
board cannot meet to discuss board business unless proper
notice is delivered to the unit owners.

Thus, if a committee contains a quorum of the board, the
committee must also comply with meeting notice requirements
to avoid a Palm II violation.

Legislative update. In 2014, the Illinois Appellate Court
published its opinion in Palm v. 2800 Lake Shore Drive
Condominium Assn. (Palm II), which significantly affected
the day-to-day business administration of a condominium
board due to its various holdings. After the ruling, the
Illinois legislature proposed various proposals to address
the onerous effects of Palm II. Of those various proposals,
H.B. 2640 was approved in the Illinois House and Senate and
sent to Gov. Bruce Rauner on Aug. 7 for approval.

In part, H.B. 2640 authorizes a board to ratify and confirm
actions taken outside a properly called board meeting in
response to an emergency. The bill provides that condominium
bylaws require the board to give notice to the unit owners
of the occurrence and general description of an emergency
event within seven business days after the emergency for
actions taken outside of a properly called board meeting.
Rauner is expected to sign the legislation.

Publication date: Aug 23, 2015

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  Q: Our condominium unit experienced a massive electrical
outage when the outlet above our dishwasher shorted out. The
main breaker in the utility closet blew out. We have had
damage to the electrical equipment and our unit repaired. We
will advance the payments for these repairs.

I asked the association president to contact the association
attorney to see who is ultimately responsible for the
payment of the repairs, the condominium association or
ourselves. I was told that the attorney ruled that we were
responsible. When I asked the president how the attorney
arrived at that situation, I was told that this was his
conclusion without any further explanation. The president
does not see the need to call the attorney for
clarification.

I simply want to know how the attorney arrived at his
decision that the association is not responsible because our
declaration is murky.

A: The attorney is retained by the board of directors, and
the board does not have to share his or her opinions with
unit owners. Nevertheless, from your facts, it appears that
the cause of the damage occurred from equipment that was
located within the unit boundaries and serviced only your
unit. Consistent with the general obligation of a unit owner
to maintain a unit, the conclusion seems accurate and
consistent with most association documents.

Q: Since our new association president was elected two years
ago, he decided the front area of our condominium should not
be heated because it is an expense for the association. This
is a particularly difficult problem for me because my living
room wall is insulated as an internal wall and not an
external wall. The president began turning off the heat
during the winter, and my unit became impossible to keep
above 62 degrees on very cold days. The president says the
association should not pay the heat in my unit. I have lived
there for more than nine years, and this was never an issue
until he became president. What remedy might I have for such
a situation?

A: The decision to heat certain areas of the common elements
is not solely within the discretion of the association
president. This matter is a decision for the entire board.
Since you live in Chicago, there are minimum heating
guidelines that your unit will not meet because of this
policy. Property owners must provide facilities for minimum
heat requirements of 68 degrees from 8:30 a.m. to 10:30 p.m.
and 66 degrees from 10:30 p.m. to 8:30 a.m. The association
has a legal duty to provide sufficient heat to meet city
requirements.

You should submit a demand to the entire board to comply
with this ordinance for your unit. If the board fails to
act, your only practical recourse is to file a complaint
with the Department of Buildings, the agency that enforces
the heating ordinance.

Q: Our board is installing security cameras in the common
areas of the building. These common areas include the
entryways, laundry rooms and a connecting gangway between
areas of the building. Instead of having a licensed security
firm install and monitor the cameras, the board will have
the security controls, monitor and hard drive installed in a
board member's unit with the board member having sole access
to the data and responsible to no one but himself.

Is it legal for a unit owner, untrained and unlicensed in
law enforcement or security techniques, to have such control
over his neighbors?

A: An individual unit owner should not have control over
security equipment for the building. The board has hired a
company to install the equipment, and unless you have
doormen in the building, the equipment and data should be
under the control of this independent party.

What are the board's plans when this individual is no longer
a condominium director?

Publication date: Nov 4, 2012

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Q: I question whether it would be difficult to enforce a
rule or declaration provision banning renters from having
pets in a condominium, while owners are allowed to have
them. As I have seen in our building, renters do not leash
their pets and do not protect the property like owners. The
rapid turnover of renters means that pets are less familiar
in the building and greatly increases the risk of an
aggressive animal in a unit that could cause injury to
residents.

If a landlord renting a condominium can refuse to rent to
someone with a pet, why does a landlord have such discretion
with nonowners in a condominium building?

A: The Condominium Act prohibits two classes of ownership.
An association cannot deny privileges of ownership to one
group while allowing the same privilege to others.

Condominium associations are subject to a state law and the
provisions of a recorded declaration and bylaws. A landlord
can set the terms of a contract, in the form of a lease, and
impose any conditions for occupancy of the property.

From my experience, resident owners can be just as
inconsiderate as tenants in following the rules of an
association, including pet regulations.

Q: I live in a condominium that no longer allows leasing
under an amendment adopted in 1998. There is a hardship
exemption in our document, but it is very vague. Although
the board has received several requests for hardship
rentals, all have been denied.

Meanwhile, one owner was granted permission to rent to his
son after having his unit on the market for a considerable
time without success. When I questioned the board, I was
told that renting to family members is generally permitted.
Can this be done when neither the amendment to the bylaws
nor a proposed definition of hardship, now under
consideration by the board, has an explicit exemption for
family?

A: Although most declarations with leasing restrictions
contain an exception for leases to family members, a board
has substantial discretion in ruling on a hardship request.
Granting one request under these narrow circumstances will
not impair the ability of the board to impose leasing
restrictions.

If the directors want their association to be consistent
with other properties, they should consider amending the
declaration to include leases to family members and seek
ownership approval for this change.

Q: We reside in an eight-unit cluster of town home
condominiums. The unit above us has one half of its living
space above our kitchen and master bedroom. Recently, we
noticed a substantial amount of noise from the unit above.
The owners of that unit said they removed their carpeting
and padding and installed hardwood floors. Now we hear loud
noise as early as 4 o'clock in the morning.

They refuse to take any action to reduce the noise from
their new floors and suggested that we move. Shouldn't the
owners have submitted a formal request to the board asking
permission to make this floor change? Is hardwood flooring
allowed in a second floor unit?

A: Well-drafted association documents will specify that
owners may install hardwood flooring with specific levels of
sound absorbent layers. Standard flooring installation
methods require multiple layers of cork and plywood to
insulate adjacent units from unreasonable noise in a
multifamily building.

It appears your association does not have these flooring
standards, which generally require the owners to obtain the
prior written consent of the board for the project.

The declaration and bylaws should contain a provision
barring owners from causing a nuisance to others. Your
recourse is to appeal to the board to investigate the noise
and impose any steps that the directors deem necessary,
including the reinstallation of flooring with proper
insulation or placing carpeting or rugs over the noise
areas.

Publication date: Apr 1, 2012

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Q: Our condominium board will adopt a new set of rules and
regulations effective next month. Can the board adopt rules
that impose a financial burden on residents without a unit
owner vote?

One rule states every dog must be registered with the board
on an annual basis accompanied by a $150 annual pet fee. I
agree with the registration requirement, but requiring a
$150 yearly fee does not seem like something the board
should adopt without approval of the unit owners.

Another new rule states the move-in/move-out fee will be
changed to a $100 nonrefundable fee, plus a $500 refundable
cash deposit. Are there limits on the types of rules boards
can adopt without a unit owner vote, particularly when the
rules impose financial obligations on the owners?

A: Under Section 18.4 of the Illinois Condominium Property
Act, the board has the exclusive authority to adopt rules
and regulations. The rules must be reasonable and consistent
with the Condominium Act and the declaration and bylaws.

Both rules adopted by your board are reasonable. The pet fee
is essentially a user charge for costs of maintenance
arising from pet ownership in the common areas. The move-in
fee covers the administrative costs of changing association
records for the change of unit occupancy. The refundable
deposit is security for any damage to the common elements
and eliminates collection problems if the check does not
clear and the former resident leaves.

Q: The association will be remodeling our building's
management office due to lack of file space. I was surprised
to learn that our office does not scan documents to files on
the computer. Hard copies are kept for every document.

Is there a rule for condominium management offices on how
long files must be kept? It seems like a waste of paper to
keep hard copies and shred documents at some future date.

A: This issue is a matter between the board and management
company regarding the most effective means to provide
management services. Section 19 of the Illinois Condominium
Property Act lists certain time limits for keeping records,
including seven years for minutes, 10 years for financial
books and records and one year for election documents. The
board can address any perceived inefficiencies with the
management company directly.

Q: Can a condo association hire a collection agency to
obtain unpaid regular and special assessments from a unit
owner? If the foreclosure process has begun, is there a
milestone whereby the association can no longer pursue
repayment of unpaid assessments? Would the unit owner still
be liable for unpaid assessments prior to the expiration of
that milestone?

A: A condo association may hire a collection agency to
obtain unpaid assessments. To be effective, the agency
should have licensed attorneys qualified to appear in court,
if necessary, to obtain judgments. The agency's notices must
comply with the Illinois Condominium Property Act and the
requirements of the Federal Fair Debt Collection Practices
Act.

Assessments are owed under the terms of a condominium
declaration. The declaration is a contract; the milestone
you reference is the 10-year statute of limitations on
written contracts. The association may pursue a unit owner
for unpaid assessments over a period of 10 years, and the
owner will remain liable for assessments for that period
after the assessments were originally due.

Q: Our association is faced with the decision as to whether
the community should be FHA certified. I am getting
conflicting information on this question. What are your
thoughts?

A: Depending upon the sale price of units, it is generally
in the association's best interests to obtain Federal
Housing Administration certification. With FHA mortgage
insurance limits up to $416,000 in this geographical area,
FHA certification will facilitate lending and increase the
class of eligible buyers of units in your association. The
FHA certification requirements will also impose the
necessary discipline upon associations to monitor their
assessment collections and maintain reasonable reserves.

Publication date: May 6, 2012

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Q: Within the first year of our association, the board
members decided not to pay their monthly assessments and
listed those amounts as a board credit on the association
financial statements. The board held a vote of the owners to
allow director compensation, but the proposal to amend the
bylaws did not pass. A new board was voted in, with three of
the original members. Collectively, the board decided that
the original directors should not repay the past-due
assessments, penalties and fees to the association.

Is this legal? The directors owe past-due assessments, and
without a specific compensation provision in the bylaws can
the board members receive compensation for their service?

A: Condominium board members are not entitled to
compensation unless the bylaws authorize payment to
directors. Twenty percent of the unit owners should call a
special meeting of the members and demand that those board
members who received the credit reimburse the association
for past-due assessments and legal costs. At the next annual
meeting, the ownership should not make the same mistake
twice and elect directors who will not ignore the law.

Q: At our last condominium association meeting, one of the
unit owners stated she was planning to lease her unit. No
other unit owners were in favor of allowing leasing. We
believe that leasing will decrease our property values.

Our association president stated that unless 100 percent of
the unit owners agreed to prohibit leasing of units, leasing
must be allowed. Is this true? There is nothing in our
bylaws that addresses this leasing issue.

A: As to the 100 percent unit owner requirement, the
president is not correct.

If the declaration and bylaws do not prohibit or restrict
leasing, the unit ownership must vote to amend the document
to impose these restrictions. The declaration contains an
amendment provision that determines the number of owners
necessary to make this change.

Section 27 of the Illinois Condominium Property Act was
amended to provide that the voting requirement to amend a
declaration and bylaws must not exceed 75 percent of the
unit ownership.

Q: We own a town home in the far northern suburbs. Of the 24
units in our community, seven owners are delinquent in their
assessments, which is 29 percent of the association.

We are looking to sell our unit and move into a single-
family home, perhaps in the same community. Since the
delinquency threshold is above 15 percent, I have been told
that no lender will approve a sale of any home in the
community. Is this accurate?

A: Your references may be referring to guidelines of the
Federal Housing Administration in which the qualification of
the association for FHA-insured mortgages requires that no
more than 15 percent of the units can be more than 30 days
past due in assessments. The question is whether prospective
buyers will be eligible to obtain an FHA-insured mortgage,
with lower down payment requirements, if the community's
delinquency level exceeds 15 percent.

Q: I live in a small condominium building, and our
management company charges a $25 late fee for delinquent
monthly assessments. This seems excessive to me since the
average assessment is $150. The only reference I can find in
our bylaws to this type of charge is the section that states
the board must levy reasonable fines.

A: Section 9(g)(1) of the Illinois Condominium Act
authorizes a lien by the association against a unit owner
who fails to pay assessments and interest, late charges and
reasonable attorney fees incurred by the association. The
board should have written support for a late fee in the
declaration and bylaws or the rules and regulations of the
association. A late fee is not a fine. The board imposes a
late fee for delinquent assessments; it levies fines for
violation of association regulations.

Publication date: May 20, 2012

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Q: I live in a town house complex created in 2005. The
project was originally designed for 52 units, but only 26
were completed, with three shells and unsold lots remaining
on the property. The original builder went bankrupt. The
property was purchased by an investment company that
maintains it is the homeowners association board and has
hired a management company at an unusually high rate per
unit to oversee minimal exterior maintenance and pay
outstanding bills.

What rights do the actual owners have to form our own
association and separate the homeowners from the investment
group?

A: The owners consist of the investment company and your
fellow "independent" purchasers. Both sets of owners
constitute the association. Your group cannot form your own
association because that entity is in place.

Based upon the assumption that the declaration was recorded
in 2005, the property should have been turned over to the
unit owners. In that case, the ownership elects the board of
directors, which then operates the association with the
authority to hire a management company.

The investment group appears to control the majority of the
units. The ownership is entitled to a formal annual election
meeting, which the investment group might have neglected. As
owners, you can require that the board of directors hold an
annual meeting to elect the board. The board must also
distribute an annual budget, hold open board meetings and
deliver an annual accounting of income and expenses to the
owners.

As a practical matter, the primary goal of the association
should be to sell the remaining homes and vacant lots. Sales
of units cannot take place without an operating association.
The investment group acted prudently in hiring a management
company. The cost of the management fee is less important
than the orderly operation of an ongoing association.

Q: I am on the board of a small condo building of less than
20 units. The board selected a replacement window as the
building standard about five years ago with the approval of
a majority of the owners. Owners were allowed to replace
their windows over a five-year period, which is ending this
year. All of the owners replaced their windows except for
one unit that has been vacant for eight years. It was
finally sold at the end of last year. The new owner has been
paying assessments, but has not moved forward in replacing
the windows.

This owner has indicated his desire to seek additional bids
for the window replacement because of the cost, but was told
that this building standard window is not available from the
major big-box stores, and must be purchased directly from
the manufacturer and installed by their crews. The owner is
still insisting upon purchasing a window at a lower price.

I am concerned that this owner will install a nonconforming
window to save money. I would like to know what remedies the
association has if he proceeds with a purchase in this
manner.

A: Owners tend to forget that windows are part of the common
elements and association members do not own their windows.
Even if windows are classified as a limited common element,
this designation means that the owner has the exclusive use
of the window.

The appearance and control of the common elements, including
repair and replacement, is under the authority of the board
of directors. In this case, the new owner does not have the
authority to deviate from the building standard or purchase
a lesser-quality window at a cheaper price. If the owner
proceeds to install a nonconforming window, the board has
the authority to replace his selection, install a conforming
window and charge the owner for the cost.

Publication date: Jul 8, 2012

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Q. An employee of the property management firm for our
association is the corporate registered agent. The
management company prepares the annual report and files it
with the secretary of state using that employee's signature
as the association's assistant secretary. The list of the
board of directors attached to the annual report form has
this employee's name added to the list of officers. The
management company follows this practice so they don't have
to take the time to have a true board member sign the form.
The company says this procedure ensures the form will be
filed on time and will avoid a late fee. Is this legal?

A. Absolutely not. The Condominium Act states that officers
of the association must be board members. Specifically,
Section 18(c) of the act mandates the election of a
secretary from among the board of managers.

The management company is filing a false statement with the
secretary of state. Given the fact that the annual report
requires the signature of any board member, it takes a
minimal effort by management to find an authorized signatory
for the state form. The preparation of the form with proper
signatures and a correct list of officers is a routine task
without the need for the managing agent to falsify the
report. Your question illustrates a reason the association's
attorney should be the registered agent. In addition to
knowing the proper disposition of all lawsuits and forms
served upon the association, a law firm would not prepare
the annual report with the gross error you describe.

Q. I am an owner in a 36-unit town house community. We have
fee simple ownership of our homes and are governed by a
recorded declaration and bylaws. I assumed the community was
operating under the Illinois law for common interest
communities until I read a clause that stated communities
with an operating budget of less than $100,000 are exempt
from the law. Our annual budget is running about $85,000 to
$87,000. Are we exempt from operating under the common
interest community law? If so, what laws are relevant to our
governance?

A. The Common Interest Community Association Act does
contain an exemption for small common interest communities.
The "small" association exemption applies to associations
organized under the General Not-for-Profit Corporation Act
and having either 10 units or less or annual budgeted
assessments of $100,000 or less. However, the statute does
permit a small association to affirmatively elect to be
covered by the act by a vote of either a majority of its
directors or members.

Given the fact that this statute provides for an open form
of governance and full disclosure to unit owners of finances
and mandatory open board meetings, it is advantageous for
your community to elect coverage under the Common Interest
Community Association Act.

Q. I live in a community where the village negotiated a
refuse pickup rate for all residents. Our management company
takes the total cost of waste removal for units and charges
each condo on the basis of percentage of ownership rather
than the specific rate negotiated between the association
and the village. The village-negotiated rate is not based on
home size or percentage of ownership. Is the management
company acting correctly?

A. The management company is acting properly to charge this
common expense on the basis of percentage of ownership. All
charges for common expenses must be part of the budget and,
under Section 9(a) of the Condominium Act, charged back to
the owners on the basis of their ownership percentage. The
costs of cable TV and Internet service are the exception and
may be charged on a per-unit basis or by percentage of
ownership.

Publication date: Jul 15, 2012

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  Q: Last summer I was shopping for a condominium and the
MLS listing stated a weight limit for dogs in a particular
building. Before making an offer, I contacted the management
company and was told that the association does not enforce a
pet weight limit. I eventually purchased the condominium and
registered the dog as required. A few weeks ago, I received
a violation letter stating that the board had decided to
start enforcing the weight restriction and I had 30 days to
permanently remove my dog from the property. The dog exceeds
the weight limit by three pounds.

Can the board force owners to remove their animals or would
existing pets be grandfathered?

A: The MLS listing is not a legal document. Regulations of
the association are found in the declaration and bylaws and
rules and regulations. Your situation illustrates the
importance for buyers to obtain a Section 22.1 disclosure
statement enclosing the condominium documents and to read
this information immediately.

The board of directors is required to enforce the rules. If
management actually made this representation, it was
improper.

You might have a waiver argument against enforcement of the
rule if the board has failed to enforce this weight limit
for one year or more. The board can enforce the rule
prospectively against new owners. In this case, the future
of your pet depends on the date that the board decided to
enforce the pet weight limit.

Q: We are in the process of purchasing all six units in a
condominium association. We believe it would be more cost
effective to terminate the condominium association and
simply own a six-unit rental building. What is the process
for terminating the condominium association?

A: Sections 15 and 16 of the Condominium Act describe the
process for terminating the condominium regime. You must
obtain the approval of 75 percent of the ownership to sell
the property. If you are purchasing all six units, I assume
you have the consent of the current owners. Following your
acquisition of the units, the owner may remove the property
from the Condominium Act by adopting and recording an
amendment to the declaration and bylaws. As the new owner,
you must also dissolve the not-for-profit corporation that
was the legal entity of the association.

Q: Does the Illinois Condominium Act address the right of
first refusal?

A: Yes, indirectly. Section 20 of the Condominium Act
discusses exemptions from the rules of property pertaining
to condominium regulations. One exemption states that the
rule restricting unreasonable restraints on alienation does
not apply to defeat any provisions of the act. A board of
directors can enforce a right of first refusal in a
declaration under its power to impose restrictions on the
use and maintenance of units. Although many declarations
contain this right, no less than two-thirds of the ownership
must approve the exercise of this first option to purchase
or lease a unit. The exercise is easier said than done.

Q: At a recent board meeting, the directors adjourned to go
into executive session and customarily ask the ownership to
leave the meeting. We now find out that after the executive
session, and without the owners present, the board
reconvened the open meeting to pass several motions in this
second open session. Was the passing of these motions legal
and transparent in your opinion?

A: The motions were legal, but not transparent. A board may
adjourn to a closed session of an open board meeting. All
matters discussed in the closed session that are subject to
a vote must be done at an open meeting.

The proper procedure for the board would have been to hold
the closed session at the beginning of the evening and then
conduct all votes at the open meeting with the owners
present.

Publication date: Aug 26, 2012

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  Q: I would like some advice on how condominium
associations can change their rules. In my development,
there are three different phases of condominium buildings
with a master board for our property association.

Recently, the master board wanted to make a rule change
affecting the number and size of pets for our entire
complex. The rules were adopted by just one vote of the
master board. Although there was a meeting where residents
could voice their opinion, the board adopted the rule
without owner input.

Did the board pull a fast one on us? When I asked the
property manager why residents did not have a say in the
matter, I was told the rules and regulations do not require
owner approval because the rules were not legal, recorded
documents.

If the rules are not legal documents, how can owners be
fined if they violate the rules?

A: If the declaration and bylaws of the master association
authorize this power, the directors may adopt rules and
regulations without a vote of the ownership. Although the
owners should receive a copy of the rules before adoption,
the ultimate decision on new regulations by a board with
rule-making authority will be made by the directors.

Rules are legal documents because the authority of the board
to adopt the rule is contained in the applicable statute as
well as the declaration and bylaws. Rules derive from the
authority of the board and the recorded document. A board of
a master association has the power to levy and collect fines
for rules violations.

The master association declaration should confirm the
authority of the board to regulate pets in the community.
Most master association declarations specify the authority
of the master board to maintain and regulate owner activity
in areas shared by condominium owners such as landscaped
areas, common roads and community recreational facilities.

Q: I am the president of a 14-unit town house condo
association. The board is considering major masonry repairs
to alleviate structural damage and stop water intrusion into
several units. The bylaws contain a provision that special
assessments above a certain size require an affirmative vote
of two-thirds of all unit owners. I believe there is a
relevant provision in the Illinois Condominium Property Act
that provides that special assessments are passed by the
board unless a majority of the owners vote against the
assessment.

The board is confused about these two seemingly
contradictory rules regarding the assessment increases for
necessary repairs. Please clarify.

A: The statute applies to the proposed special assessment of
your association. The board of directors does not need to
obtain the prior approval of the owners to pass a special
assessment for masonry repairs. Under Section 18(a)(8) of
the Illinois Condominium Property Act, 20 percent of the
unit owners may submit a petition within 14 days after the
board formally adopts the assessment to request a vote on
the new levy. Fifty-one percent of the ownership must vote
against the assessment to defeat it.

The provision in your declaration now applies solely to
special assessments involving structural alterations or
additions to the property.

Q: I live on the top floor of a six-flat condo building. The
unit owners directly below us have recently seen water spots
on their ceiling that started two months ago and appear to
be getting larger.

We are trying to determine how to handle this and who is
responsible for the expenses. The first step is a
determination of the source of the leak and then obtain the
cost of the repair. The owners below us will likely have to
require a contractor to open their ceiling for the testing.

Who is financially responsible to cover the expense to
diagnose and then make the repairs?

A: The association should advance the cost to investigate
the source of the leak. If the source of the water comes
from your unit, you will have to reimburse the association
for the testing cost and compensate your neighbors below for
repair costs to their unit.

Publication date: Sep 16, 2012

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  Q: I am a member of a large multi-unit condominium
association. To what extent is our association governed by
the open meetings act? Can resident owners be permitted to
ask questions or make reasonable comments to board members
or the property manager during the course of a board
meeting? Is it permissible for the board to refuse to allow
any questions or comments by owners during these regularly
scheduled meetings and only allow comments after the meeting
adjourns?

A: Your association is governed by the open meetings
provisions in Section 18(a)(9) of the Illinois Condominium
Property Act. This section allows owners to attend meetings
but does not give them the authority to make comments or ask
questions during the course of the meeting.

A condominium board has the discretion to permit unit owner
comments and questions before the meeting is called to order
or after it adjourns.

Condominium board meetings are not town hall gatherings.
Owners cannot ask questions or make comments during the
business portion of the board meeting. The most effective
means for a board to permit unit owner input is to reserve a
portion of the evening of the board meeting for unit owner
comment before the board meeting begins.

Q: We are trying to sell our condominium. We have a 12-unit
building in which four units are true rentals, three units
are inhabited by children of owners and five units are owner
occupied. We assume that the children living in the three
units are not joint owners.

Some real estate agents for owners claim that we need to
lower our price because the ownership of the building is
below 50 percent and potential buyers will not be able to
obtain financing. Do the children count as rentals? Is this
an issue if our building gets FHA approval?

A: From your information, the association has a leasing rate
of one-third of the units. Review the declaration to
determine whether there is a leasing exemption for family
members. Leases with written agreements and rental payments
qualify as rentals for purposes of calculating owner
occupancy levels.

The level of owner occupancy will be an issue for the board
seeking to obtain FHA approval. FHA standards prohibit
leasing in excess of 50 percent of the units.

Q: Is the board of directors allowed to meet without giving
notice to the members? Can the board meet behind closed
doors? I live in a large homeowners association that is
governed by its own covenants and bylaws, as well as the
Common Interest Community Association Act and the General
Not-for-Profit Corporation Act.

We are told that these meetings, sessions, retreats or
whatever name they are labeled, are planning discussions and
the best means to distribute information to the members.
Shouldn't these matters be discussed in an open session and
not behind closed doors?

A: These discussions are not meetings because the board is
not making decisions by voting, and thus not conducting
board business. Section 1-5 of the Common Interest Community
Association Act contains the same definition of a board
meeting found in the Condominium Act, which is a gathering
of a quorum of board members held for the purpose of
conducting board business.

In the interest of open communication, the board should
advise the owners when they hold these sessions and the
subjects under discussion. Although these gatherings are not
illegal, the board should hold these sessions infrequently.
Regardless of whether the board is technically complying
with the law, owners become suspicious when directors
frequently hold discussions behind closed doors.

Publication date: Sep 23, 2012

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  Q. I am the president of our condominium association with
a great concern about the number of investment units in the
building. I purchased my unit in October of 2007 and
recently tried to refinance under the HARP 2.0 program. I
found out that my mortgage is owned by Fannie Mae and could
not be refinanced because the agency requires buildings to
be more than 50 percent owner-occupied, and no more than 10
percent of the units can be owned by more than one entity.

Our building was caught in a rush of investor purchases just
as the market was tanking. A developer still owns more than
10 percent of the units and is leasing them out. The owners
in our building cannot sell because no one can get a
reasonable mortgage.

Are there any other alternatives to traditional and private
bank mortgages for someone to purchase a unit in the
building that does meet Fannie Mae numbers? I see other
small homes in our neighborhood being sold on a regular
basis.

A. The problem in your association is a consequence of heavy
investor sales. The Home Affordable Refinance Program (HARP)
is a useful vehicle for mortgage refinancing if units in
your building qualify for the program.

The alternative sales vehicle for bank mortgages is an
installment sale of the unit. The purchaser makes
installment payments over a period of years until a lump-sum
payment is due under the contract. Although you will not be
able to cash out of the unit, you will obtain a regular cash
flow and perhaps enable your buyer to obtain a mortgage when
the lending climate improves or the association's owner-
occupancy level increases.

To increase owner occupancy, your association should set a
rental limitation. A declaration amendment with this leasing
restriction will allow existing owners to continue the lease
but require them to sell to a resident owner if the number
of leased units exceeds a certain percentage. This type of
amendment would also benefit developer-owned units that will
otherwise be difficult to sell in the future.

Q. Our property manager has mailed a notice of our upcoming
board election to owners in our town home community. The
notice states that if we do not attend the meeting, owners
may fill out the enclosed proxy and assign their vote to a
neighbor, the board of directors or the manager herself to
vote on the owner's behalf.

The declaration states that only homeowners may vote. Is the
manager violating this rule if she votes proxies?

A. A manager should not be a participant in the election
process as a proxy holder. If authorized by your declaration
and bylaws, owners may vote by proxy. The proxy designates
any person to attend the meeting and cast the owner's vote.
The Condominium Act requires the proxy holder to vote for
candidates selected by the owner, but if the owner does not
express a preference, the proxy holder may vote for
candidates of his or her choice.

The manager's directions have put her in a position of
expressing a preference for certain candidates. The manager
should limit her involvement to sending notices of the
meeting with the election documents and calculating the
votes.

Q. I am the treasurer of a self-managed association.
Apparently our rules provide that owners who have rented out
their units must put their unit on the market at least once
a year or when the lease runs out. I do not think we can do
this.

Am I correct?

A. The association may not require an owner to list a unit
for sale. If the period of a leasing restriction expires,
the owner has the choice of either occupying the unit or
selling the property.

Publication date: Oct 21, 2012

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  Editor's note: This is the final column written by Chicago
attorney Mark Pearlstein, who died Tuesday after a long
illness. Since 1988, Mark had written a weekly column on
condominium and homeowner association law for the Tribune,
and we are deeply saddened by his death.

Mark's law firm, Levenfeld Pearlstein LLC, will continue the
Condo Adviser column. Howard Dakoff, Mark's partner in their
condominium law group, will begin writing Condo Adviser.

Q: I have a client who bought a foreclosed condominium unit
at auction. Just before the closing, the seller's attorney
claims the buyer is responsible for paying legal fees
incurred by the association prior to the foreclosure or he
forfeits his earnest money if he does not close. Is this
correct? The fees are 25 percent of the unit's value.

A: The seller's attorney is correct. Section 9(g) of the
Illinois Condominium Property Act requires the purchaser of
a condominium unit in a judicial foreclosure sale or a
purchaser who acquires title from the mortgagee, to pay the
assessments for the unit during the six months immediately
preceding an institution of an action to enforce the
collection of common expenses. Because the statute contains
the words "common expenses" versus "assessments," common
expenses would include the attorneys' fees and costs
expended by the association relating to the institution of
the action with the collection of such assessments.

Q: Our condominium association just passed an amendment
prohibiting parking on the streets, with fines of up to $200
for the third violation, even though the village allows
parking on all village streets. Is this legal for the
association to do, and can they assess a fine?

A: From the context of the question, it appears the streets
are not a private association road, but dedicated streets to
the local municipality. Assuming as such, the board of
directors of a condominium does not have the authority to
prohibit parking on public streets, especially when parking
on the streets is allowed by the municipality. Pursuant to
Section 18.4(a) of the Illinois Condominium Property Act,
the authority of the board of directors of a condominium is
to provide for the operation, care, upkeep, maintenance,
replacement and improvement of the common elements. The
board does not have the authority to adopt restrictions
against property that is not part of the common elements.

Q: Most condominium associations distribute a list of unit
owners with the agenda for the annual meeting. Our
condominium association has refused distributing this list
to unit owners on the basis of privacy. Is this legal?

A: Distribution of the names of unit owners with the agenda
at annual meetings is not standard practice in the industry.
Nonetheless, boards may elect to do so on their own
initiative. If a unit owner desires to obtain a list of unit
owners prior to the annual meeting, pursuant to Section
19(a)(7) of the Illinois Condominium Property Act, unit
owners are entitled to a copy of the names, addresses and
weighted votes of all members entitled to vote in the
association; however, the unit owner must put such a request
in writing and state a proper purpose.

Illinois case law has held a "proper purpose" to be
interpreted broadly, thus, a reason such as the requesting
unit owner desires to determine which units have the highest
weighted averages for campaigning purposes, and the unit
owner's name, would be a valid proper purpose. It should be
noted that the association has 30 days to respond to
requests for documents and/or information pursuant to
Section 19. Thus, the unit owner would be wise to make such
a request at least 45 days prior to the annual meeting for
such information to be utilized.

Q: I am the treasurer of a condominium building with 23
units. The building is about 30 years old. Is there a
formula for the amount we should have in reserves?

A: There is no formula mandated by law regarding the amount
to keep in reserves. However, Section 9(c) of the Illinois
Condominium Property Act requires all budgets to provide for
reasonable reserves for capital expenditures and deferred
maintenance for repair or replacement of the common
elements. Section 9(c) provides guidelines of the factors
for the board to take into consideration when determining
the amount of reserves appropriate for a specific
association, which include: the repair and replacement cost,
and estimated useful life, of the property; the current and
anticipated return on investment of association funds; any
independent professional reserve study; the financial impact
on unit owners, and the market value of the condominium
units, of any assessment increase needed to fund reserves;
and the ability of the association to obtain financing or
refinancing.

Q: I live in a 700-plus-unit condominium building. When I
moved in, there was a push to purchase new windows, so I put
in all new windows (17 of them, as I have a corner unit).
The problem is, people were "encouraged" to install the new
windows, but there was no building mandate. Now, from the
outside, our building looks like a terrible patchwork with
the old rusty windows sticking out like a sore thumb. Does
the board have the authority to require each unit owner to
install the new windows since they affect the outside, thus
common beauty of our building?

A: The board of directors' authority to mandate replacement
of limited common element windows is contained in the
condominium declaration. Legal counsel for the association
should review your association's condominium declaration to
determine the extent of such authority. Customarily, the
board of directors does have the authority to mandate
maintenance, repair and replacement of limited common
elements, including windows.

Further, most declarations -- but not all -- allow the board
of directors to actually perform the maintenance, repair and
replacement of windows and assess the cost thereof back to
the units to which the windows are appurtenant.

Q: I moved into a condominium unit in December 2011. We had
a board meeting last night and they approved board meeting
minutes from September 2011 (before my move-in date). During
the minutes' review, it was stated that a former handyman
was advised to not visit our building due to a pending
lawsuit. I raised a question as to this, as I received a
22.1 disclosure form dated Dec. 22, 2011, stating there were
no pending lawsuits. After questioning this, our management
company representative stated that it was not a lawsuit, but
rather, an administrative hearing. My question is, do I have
recourse if it already is or turns into a lawsuit?

A: Section 22.1(a)(6) of the Illinois Condominium Property
Act requires board of directors to disclose, upon demand, a
statement of the status of any pending suits or judgments in
which the association is a party. Section 22.1 is not
limited specifically to lawsuits, but to any suits, which
would include claims in judicial or quasi-judicial forums in
which the association is a party.

In your case, the association is required to disclose a suit
by a former employee. The date of filing of the handyman's
claim, and the type of claim filed, are germane as to
whether such disclosure should have been included in your
22.1 disclosure form and to determine whether you have any
recourse against the association.

Publication date: Dec 16, 2012

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  Q: Our association is in the process of updating our rules
and regulations. One of our proposed revisions is increasing
the fine to $250 for an owner who parks in a handicap space
without the required state permit. This will be identical to
the state penalty for doing this. We also propose increasing
our regular fine structure to higher amounts. These fines
have not been increased in over 19 years. Example: A fine of
$25 would increase to $45. We were told that these may not
be upheld in court. What are your thoughts?

A: Condominium boards are authorized to adopt reasonable
fines for violations of the declaration, bylaws and rules
and regulations of the association. Section 18.4(l) of the
Illinois Condominium Property Act and Illinois case law
affirm that right; however, nowhere in the statute or case
law are specific dollar figures used to determine
reasonableness. The fines must be reasonable in the board's
determination (and each board may have a different idea of
reasonableness). A court will apply an objective
reasonableness standard. Thus, a $250 fine for parking in a
handicap parking space without a permit and $45 fines for
other violations are not unreasonable on their face and
would likely be upheld in a court.

Q: We are a 40-unit condominium association in a five-story,
wood-frame building with an exterior wall made of cinder
block with a brick facade. The structure is 45-plus years
old, and we are seeing cracks in some of the wall joints due
to settling, mainly on the upper floors. Is this an
association repair responsibility, and if so, who is
responsible for the finish paint coat once the repair is
completed?

A: The exterior wall of an association building is a common
element, and common elements are an association expense to
maintain, repair and replace.

To the extent settlement of the building creates settlement
cracks in the interior drywall of units, such cracks are a
unit owner cost to repair because the drywall plane within
the condominium unit is part of the definition of the unit.
Decoration of a unit, such as painting, is also a unit owner
cost.

Q: My 40-year-old condominium building has had the same
board for six years. They refused to have a slate at the
time of elections. They apparently have nominated a neutral
and frequently absent resident to put it up to the board
that the board be re-elected with the same members.

Last year, a resident volunteered to have her name put on a
slate, but this was ignored. My suggestion among other
disgruntled residents was to have a paper placed in the
party room, and anyone who wished to be added to a slate
could write down their name. Is the present abdication of a
no-contest election legal, and does my suggestion have
merit?

A: It is generally not improper for a board of directors to
succeed themselves for six years if elected by the unit
owners. However, it is improper for the board to express a
preference in favor of any candidate (Section 18(a)(17) of
the Illinois Condominium Property Act) and to prohibit
nominations of candidates from the floor at an annual
election.

The best practice for candidate solicitation is for the
board to send out to all unit owners prior to the annual
election a candidate request seeking candidates for the
board election. Alternatively, any unit owner may be
nominated from the floor of the annual meeting to be a
write-in candidate. The board simply has no legal authority
to refuse a unit owner from submitting their candidacy for
the election of the board.

Publication date: Jan 13, 2013

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  Q: I live in a 60-unit condominium building. A majority of
the occupants are retirees. I suggested to our board that a
centrally placed defibrillator would be a beneficial
addition to the community, and the board rejected the
suggestion as being too great a liability for the
condominium association to undertake.

I see defibrillators in shopping malls and commuter trains,
so the liability doesn't seem to frighten those providers.

A: The issue of defibrillators, and other services for
seniors in condominium associations, is increasing in
frequency with elderly populations and aging baby boomers.
In fact, these situations are commonly referred to as
naturally occurring retirement communities (NORCs).

On occasion, NORCs install defibrillators in their
developments. The Illinois Good Samaritan Act protects
people from liability who perform emergency medical care for
no compensation, such as using a defibrillator to save a
life.

In such an event, a person trying to save the life of a
neighbor wouldn't be liable for civil damages as a result of
his or her actions, except in the case of willful, wanton
misconduct. The association itself is not protected from
negligence regarding the defibrillator -- to the extent
there is actually negligence -- through the Good Samaritan
Act (and associations have liability insurance for such
negligence claims). However, since defibrillators have
become more user-friendly over the years and save lives, it
is not unheard of for associations to buy them for their
communities because the potential benefits outweigh the
risks.

Q: I am the treasurer for the board of a 20-unit
condominium. I recently learned that the president of the
board is not a unit owner but a renter. The unit in which he
resides was sold at auction one month ago. On top of all
this, he collects the homeowner association monthly
assessment payments. Are these situations allowed?

A: Section 18(a)(1) of the Condominium Property Act requires
that board members be a unit owner in the association.
Without question, tenants without an ownership interest are
not authorized to serve on the board of a condominium.
Immediate action on this issue should be pursued. As far as
the president collecting monthly assessments versus the
treasurer, that in and of itself is not improper, although
it is not customary. Pursuant to Section 12(a) of the
Condominium Act, all associations over six units must have a
fidelity bond covering people handling association funds,
which protects the association from a financial loss from
mishandled funds.

Q: Please explain the interplay, and hierarchy, of legal
authority between the condominium declaration, bylaws, rules
and regulations, and Condominium Act.

A: At the top of the food chain, so to speak, is the
Condominium Act. Pursuant to Section 2.1 of the Condominium
Act, any provisions of a condominium instrument inconsistent
with the provisions of the Condominium Act are void as
against public policy and ineffective. Pursuant to Section
4.1(b) of the Condominium Act, the next document on the
hierarchy is the declaration, which prevails over the bylaws
and both prevail over other condominium instruments such as
rules and regulations. To the extent a provision in a
document lower on the hierarchy is inconsistent with a
document above it, such a provision would be ineffective.

Publication date: Mar 24, 2013

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  Q: Our condominium unit faces the roof of an adjacent
condominium building that leases a portion of its roof for
cellphone equipment and antennas. It seems every time I look
out my window, new equipment is added without any notice to
surrounding neighbors, which affects my view. Is there any
law that restricts the adjacent building from modifying the
equipment on its roof?

A: There is no law that restricts adjacent property owners
from modifying their roof because it subjectively affects
the view of another property owner, unless there is a
written agreement between the property owners that states,
in general, that the property may not be modified if views
are affected. Those types of agreements are called
restrictive covenants. If such an agreement exists between
properties, and one property owner violates the terms of a
restrictive covenant, the other property owner or owners may
obtain an injunction to prevent the modification.

Q: I am a unit owner in a small 25-unit condominium. One of
the unit owners has been trying to sell her unit for some
time. As a possible solution to this unit owner's problem,
it has been suggested that the association buy the unit and
rent it out for income. Is that allowed, and could the
association use reserve funds to pay for the purchase? Is it
just a bad idea?

A: Condominium associations are in the business of
maintaining the common elements; they are not in the
business of becoming landlords for rental income. The
transaction costs in acquiring and improving the unit; the
possibility of problematic tenants or time periods with no
tenants or both; and income tax considerations may result in
buyer's remorse. Nonetheless, Section 18(b)(13) of the
Condominium Act does allow an association to buy a unit with
approval of at least two-thirds of the unit owners.

Most condominium declarations restrict the use of reserve
funds for capital improvements to the common elements; thus,
the board will most likely need to procure a loan to finance
the purchase.

Q: I live in a condominium building and bought a unit
through a short sale well below market rate. Despite
numerous requests to the property manager for financial
information, I have not received any information regarding
the association's finances. What are my rights for financial
information?

A: Section 19 of the Condominium Act grants unit owners the
right to inspect the books and records of the association
upon a written request stating a proper purpose. The board
must comply within 30 days. Section 18(a)(7) of the
Condominium Act also requires the board to provide unit
owners with a yearly itemized accounting of income and
expenses.

Thus, unit owners can demand such financial information,
and, if wrongfully denied the documents, unit owners may
file a lawsuit to obtain the records and recover legal fees
and the costs to enforce their rights.

If you live in Chicago, an Illinois Supreme Court case
ruling delivered April 25 might be of interest to you. In
the case of Palm v. 2800 Lake Shore Drive Condominium Assn.,
the Supreme Court held that a local municipality may adopt
more restrictive requirements in legislation than an
Illinois statute on the same topic. In Palm, the underlying
issue was inspection of association records.

The Chicago Condominium Ordinance allows unit owners to
inspect books and records of an association on 10 days'
notice without stating a proper purpose versus the
Condominium Act, which requires a proper purpose be stated
and allows the board to respond within 30 days.

Publication date: May 5, 2013

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  Q: I am the secretary of a condominium association and
very much believe in being a cohesive and cooperative board
member. That being said, we have one board member who shows
no regard for cooperativeness, constantly talks poorly about
the (very capable) president, hires vendors -- without board
knowledge -- for certain tasks, and generally conducts
herself as a bully.

She has been openly confronted but shows no change in
behavior. What do you suggest to rein in our unruly board
member?

A: If another private and candid discussion with the unruly
board member does not produce civility and compliance with
board fiduciary duties, the board might consider adopting a
board member code of conduct; notwithstanding there is no
legal consequence for a violation of a code of conduct.

If all else fails, removal of the unruly board member may be
the only option. Two-thirds of the unit owners in the
aggregate may remove a director from the board, and in
extreme circumstances, filing a lawsuit to obtain a court-
ordered removal per the Illinois not-for-profit corporation
may be warranted. Alternatively, the unit owners could
choose to not re-elect the unruly board member at the
expiration of the board member's term.

Q: Once a year, our condominium management company forces
all unit owners to vacate their parking space for an entire
business day to power-wash the garage. Parking spaces are
separately deeded and taxed units. The declaration grants
the association access to units for maintenance, including
parking units. Harassing phone calls and threats of towing
are used as a means to entice compliance. Does the board
really have the authority to do this?

A: While arguably a temporary inconvenience to unit owners,
the association is entitled to demand unit owners vacate
their deeded (or nondeeded) parking spaces to power-wash the
garage. It is customary for parking garages to be power-
washed as part of regular maintenance.

Section 18.4(j) of the Condominium Act allows such access,
as do most condominium declarations. Failure to remove a car
from a parking space can cost the unit owner towing and
other enforcement fees (such as fines), which would be more
inconvenient than moving an automobile for a day.

Q: I live in a building with eight units. For the last 17
years, the electricity used for the building antenna and
transformer has been plugged into my unit's electricity,
thus, I've been paying for the other seven units to use the
antenna. At the moment, only one unit (not mine) uses the
antenna. What are my rights for compensation for electricity
that I'm paying for the benefit of other unit owners?

A: Unless the governing documents for the association
expressly provide an easement to use electricity from a
particular unit to power the building's antenna (which is
doubtful), there is a basis in the law for an equitable
claim of restitution/unjust enrichment against the
association for wrongfully connecting into the unit's
electricity to power a common element. Prospectively, an
agreement with the association for agreed-upon compensation
should be executed to continue the arrangement, or
disconnecting the antenna from the unit's electricity may be
the next step.

Publication date: May 26, 2013

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  Q: We live in a garden unit of a four-unit condominium
building, and when it rains, water infiltrates into our
crawl space. We can smell a musty odor in our living area.
We have been experiencing this issue for over two years now,
and the association board refuses to address the water
infiltration. Any help would be greatly appreciated.

A: The board of directors has a fiduciary duty to maintain,
repair and replace the common elements, which includes
preventing water infiltration from the exterior into the
building.

If a stern reminder to the board of their fiduciary
obligations does not motivate the board to abate the water
infiltration, short of filing an injunction lawsuit seeking
a court order to require the board to abate the water
infiltration, a practical alternative may be to seek board
permission to pay for the repairs yourself to the common
elements to prevent the continuing water damage and odors
into your unit.

Depending on the amount at issue, you may then consider
whether pursuing the association for reimbursement is
appropriate.

Q: My 72-year-old mother lives in a mortgage-free $200,000
condominium unit. She recently applied for a reverse
mortgage; however, the process came to a halt when the
reverse mortgage company informed her that her unit was in
an association that is not approved by the Federal Housing
Administration.

The board is not interested in obtaining FHA approval for
the association. My mother's income is minimal, and she
needs money for expenses. Does my mother have any recourse?

A: Since the elimination of FHA approvals for individual
units, the reverse mortgage company is correct that an
entire association must be FHA approved in order for a
senior unit owner to be eligible for a reverse mortgage.
Unfortunately, there is no requirement that an association
pursue FHA approval for its community; thus, unit owners
have no recourse against the association for the board's
refusal to obtain FHA approval.

If the unit owners cannot persuade the board to obtain FHA
approval for the association, possible alternatives for your
mother are to seek a home equity line of credit that she can
easily afford to repay or to consider selling her unit to an
investor-owner and lease it back during her life.

Both options would provide her with an influx of money and
allow her to continue living in the condo.

Q: I live in a condominium that is only a few years old and
has structural problems. The association has adopted a
special assessment to make necessary repairs and intends to
collect all the money before hiring contractors to perform
the work.

If the association collects more than is needed, the board
says that it will not refund the overage collected. Can the
board use the collected special assessment money for
something not specified?

A: Pursuant to Section 18(a)(8) of the Condominium Act, the
board of directors of condominium associations may adopt a
special assessment for repair costs (reciprocal provision
for community associations is in Section 1-45 of the
Illinois Common Interest Community Association Act).

In the event a special assessment is properly adopted, to
the extent an association does not use the full amount of
the special assessment for an intended project, the board is
not required to return excess money to the unit owners. The
board may use such money as part of its operating expenses
or transfer the money to the association's reserve fund.

Publication date: Jun 16, 2013

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  Q: I am the board president of a small self-managed
condominium. One of the board members is semiretired and on-
site more, so he deals with the monthly pest control
maintenance company, other workers and services as needed,
oversees projects, etc. This board member has stated the
association should pay him for being the "super" around the
building. Can the association compensate him?

A: While extremely rare, board members for a condominium
association may be compensated, but only if the
association's bylaws authorize compensation of directors. In
fact, most bylaws state that directors shall serve without
compensation.

In the event the bylaws do not expressly authorize
compensating directors, the bylaws may be amended by a vote
of the ownership, which requires approval of at least two-
thirds of the unit owners (and no more than 75 percent),
depending on the amendment provision of the bylaws.

Q: I serve on a condominium board. We are confused about the
money an association can recover from a purchaser of a unit
at a judicial sale emanating from a foreclosure. The
judicial sale occurred in January but was not confirmed
until March. We know we are entitled to six months' worth of
assessments based on the Condominium Act's super lien, but
does the six-month payment include legal fees and cable
charges? And when is the new unit owner required to start
paying assessments?

A: Pursuant to Section 9(g) of the Condominium Act, the
association is entitled to recover common expenses for the
six months prior to the institution of an action to collect
the delinquent assessments. Common expenses are defined as
the proposed or actual expenses affecting the property,
lawfully assessed by the board.

Thus, legal fees, costs, late fees and cable fees may be
included as part of the common expenses if such costs
occurred during the six-month period.

As far as when a purchaser of a judicial foreclosure sale
must commence paying regular assessments, Section 9(g)(3) of
the Condominium Act states that common expenses for a unit
are due the first day of the month after the date of the
judicial foreclosure sale.

Q: What can be done about a condominium board that places no
time limits on unit construction projects and doesn't limit
the number of projects occurring at the same time?

The swimming pool, balcony and too many interior common-
element projects make living here impossible from 8:30 a.m.
to 4:30 p.m. This is serious. One unit took 3 1/2 years to
complete, and the unit above mine has been remodeled three
times in the past seven years.

A: The board of directors administers the property, which
includes common-element remodeling projects and approval for
interior unit remodeling projects. Pursuant to Section
18.4(h) of the Condominium Act, the board may adopt rules
and regulations governing unit construction projects.

Depending on the age of the building and the last time unit
interiors were remodeled, ongoing construction projects may
be a reality and not patently unreasonable. Nonetheless,
unit owners may attend board meetings and seek information
regarding the number of simultaneous construction projects
and their length.

Further, unit owners may request the board enforce, and
adopt if needed, reasonable construction rules, which may
include provisions on length of time to complete unit
remodeling projects.

Publication date: Jun 30, 2013

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  Q: I live in a condominium building with an above-ground
swimming pool. Swimmers can access the pool platform by
stairs or a ramp. We have no owners who use the ramp.

We have a board member who says the American with
Disabilities Act requires us to maintain the ramp anyway.
How does the ADA apply to our swimming pool?

A: The provisions of the Americans with Disability Act
relating to construction apply to owners, lessees and
operators of places of public accommodation or commercial
facilities. A place of public accommodation is a facility
operated by a private entity whose operations affect
commerce.

A private condominium association is neither a place of
public accommodation nor a commercial facility, thus, the
disabilities act does not apply to the swimming pool. The
Illinois Accessibility Code applies to pools, but it does
not require a ramp for pool access.

Q: The board of directors of my condominium association has
recently amended our bylaws to require unit owners to
provide the board a copy of unit keys to be used in the case
of emergency access to our units. We have no information
regarding how the keys will be safeguarded or the definition
of an emergency. May the board legally compel unit owners to
provide them a key?

A: It is not uncommon for association governing documents to
require unit owners to provide the board with a copy of
their unit key for emergencies or to provide unit owners
access in the event of a lockout. Such provisions are valid.

Section 18.4(j) of the Condominium Act grants the board
access to a unit for the maintenance, repair and replacement
of common elements or for making emergency repairs necessary
to prevent damage to the common elements or to other units.

The reasonable judgment of the board is the standard in
seeking access to a unit for emergency repairs.

While not binding authority, an emergency is defined in an
unrelated section of the Condominium Act as "the immediate
danger to the structural integrity of the common elements or
to the life, health, safety or property of the unit owners."

Q: I live in a 13-unit condominium association. Two units
per floor share stairways and railings for the front and
back doors. Our board president advised all unit owners that
the stairways and railings are limited common elements and,
therefore, the responsibility of the unit owners to repair
at their cost. We have repaired our loose railings, but what
can the board do if other unit owners do not repair their
railings?

A: Assuming such stairways and railings are indeed
classified as limited common elements under the condominium
declaration, most declarations do shift the responsibility
for repair of limited common elements to the unit owner or
owners affected.

But most declarations also allow the board the authority to
maintain, repair and replace limited common elements and
assess the cost to the units affected if the unit owner or
owners fail to do so.

Publication date: Jul 28, 2013

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  Q: I own a unit in a town home association that is subject
to the Common Interest Community Association Act.

For several years, the board has not provided the owners
financial information compliant with the act, including a
summary of receipts and expenses and reserve account
information. What options do owners have to get such
information?

A: Section 1-45 of the act was adopted to guarantee owners
in community associations certain disclosures relating to
the finances of a community association. If the board is not
providing the required financial information, pursuant to
Section 1-30 of the act, upon stating a proper purpose, an
owner may request inspection of the association's books and
records.

If such records are not made available to the owner within
30 days, the owner may file a lawsuit to obtain such records
and is entitled to an award of reasonable attorneys' fees
and costs for the litigation.

Q: I live in a small condominium association. The board of
directors is composed of three directors, and the term of
each board position is two years. However, all three
positions expire at the same time. Is this legal?

A: Section 18(a)(1) of the Condominium Act states that the
terms of at least one-third of the board of directors shall
expire annually. Thus, a situation where all board members'
terms expire simultaneously every two years is inconsistent
with the Condominium Act because it means there would only
be an election every two years (one-third of the board
members' terms would not be expiring annually). To comply
with Section 18(a)(1) and to address the issue of board
member continuity, most condominium bylaws require staggered
board terms, which means that each year, some, but not all,
of the board members' terms expire or board terms are only
one year.

While the bylaws could be amended to stagger board terms,
for a small association, that might be cost ineffective.
Holding an election yearly because the election cycle is
void per Section 2.1 of the Condominium Act may make more
sense. In a high-rise condo association, board staggering is
important to maintain institutional knowledge because there
is a much larger pool of potential board candidates that
could result in a complete change of board member
composition if there are yearly elections for all board
positions.

Q: I own a unit in a high-rise condo that I rent to a
tenant. The building has recreational facilities such as an
indoor pool. The management company states landlord unit
owners cannot use recreational facilities once the unit is
rented. As a unit owner, do I have a right to use these
facilities?

A: When unit owners lease their unit, they are leasing all
of the possessory rights of the unit, which includes the
rights granted in the condo declaration to use the common
elements. Thus, when unit owners lease their unit's interest
to a third party, the unit owners do not retain the right to
use common element recreational facilities.

Publication date: Nov 10, 2013

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Q. I am a member of our condo association board. At the last
election, two experienced directors were not re-elected. The
new board members do not work with the remaining board
members. They send divisive e-mails and disrupt our
meetings.

One board member is obsessed with our reserve fund,
constantly calling for a reserve study, which is an
expenditure that is not needed. How do we address this
problem?

A. Reserve studies are not mandatory under the Condominium
Act but are strongly advised. These studies provide a
guideline and a priority for future repairs and replacement
of the common elements. The board should seriously consider
obtaining a reserve study. It is a worthwhile expense. A
long-term maintenance and replacement plan is necessary for
a well-run property.

Regarding the conduct of new directors, the president runs
the meeting and the remaining directors should respect his
or her authority. If new directors are frustrated that their
proposals or ideas are not getting sufficient attention,
there are parliamentary procedures within the Condominium
Act to present proposals to both the board and unit
ownership.

Q. Under what circumstances can an owner refuse to make
monthly or special assessment payments? A unit owner is
refusing to pay a special assessment, citing as her reason
"dissatisfaction with repairs done in a common element."
This owner also has a history of late payments. Now she is
claiming financial hardship. The board has been willing to
collect her assessments in installments, but she has made
only one payment.

How should the board respond?

A. The board should respond with a demand for possession,
followed by an eviction action.

There are only two defenses to non-payment of assessments:
Either the money was paid or the assessment was illegal.

Individual owners cannot base their decision to pay
assessments on their satisfaction with the work of an
association contractor.

Q. I have had a running battle with my condo association
over assessments for tuck pointing in our high-rise
condominium building. Our association had a major facade
project 10 years ago. At the time, the contractor stated
that he would give the association a credit for future work.
The association board began planning the current facade
project in 2007. It appears that the association will not
get the credit promised by the contractor.

I originally selected a five-year payment plan for the
current assessment, but now the board wants me to pay this
sum in full installments this year. I have been incurring
late charges, and my account balance now shows these costs,
plus attorneys' fees for collection notices. I recently lost
my job and do not want to lose my home. I have not been able
to get any satisfaction from the association as to why the
current tuck-pointing job is necessary or why I cannot opt
for the installment plan that I prefer.

A. It is not unusual for an association to undertake two
major tuck-pointing projects within 10 years. While interim
or spot tuck pointing may extend major repair projects of
this type, the timetable followed by the board does not seem
unreasonable.

Under the Condominium Act, the board may determine the
amount and payment schedule for special assessments.

While owners are experiencing economic difficulties, the
directors also have to maintain the association property.
The board must diligently pursue repair work for those areas
that may lead to water infiltration. The board has a
challenge to complete necessary maintenance work and levy
the necessary assessments at levels that owners can afford.
In today's environment, the board has a difficult
assignment. Your best alternative is to pay the assessments
on the schedule determined by the board.

Q. The individual we think is an owner of a unit has a
daughter who lives with him. She claims that she has a right
to be a board member. She has power of attorney and also
states that the property is being held in trust for her.
Does she have a right to run for the board?

A. Board members must be title holders. A power of attorney
is not evidence of title and does not confer title on the
individual to whom the power has been directed.

Association documents should specify whether a trust is
recognized as a unit owner and, if so, whether the trustee
and/or its beneficiaries are eligible to serve on the board.

Publication date: Apr 12, 2009

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Q. I am on the board of an eight-unit condo building. One of
our owners bought their unit about three years ago and has
retained it as a rental.

Over the last four or five months, this owner has been
haranguing the board about the way the board manages the
property and the alleged history of mismanagement of funds.
He has engaged in personal attacks on individuals and unit
owners.

Can the board request a formal retraction for those
accusations that we consider libelous? Is there some type of
cease-and-desist order the board can obtain? He has been an
impediment to the board's ability to run the property.

In the past, you have referenced a section of the
Condominium Act regarding the role of owners at board
meetings. What is that section?

A. Most condo owners are supportive of board efforts, but
may provide constructive criticism. A minority will
criticize constantly, often crossing the line into
defamatory statements.

The best response to a hostile owner is to attack his
creditability. By supplying owners with information about
board accomplishments and financial data, owners will
conclude that his complaints are not valid. The directors
should distribute summaries of board meeting minutes or the
minutes themselves. The board also should distribute the
annual accounting of income and expenses and advise owners
of possible future repair projects.

Section 18(a)(9) of the Illinois Condominium Property Act
states that owners may attend and even tape board meetings.
While such recordings do not make for fascinating cinema,
the statute clearly states that a board meeting is a
gathering of directors. Owner participation is not part of
the meeting.

Prudent boards will provide a time period before or after a
meeting for the owners to address the directors. Once the
board meeting starts, the directors must conduct their
business without interruption.

Q. I am the president of our 49-unit, self-managed condo
association. The board has designated seven owners to be
"unofficial trustees." They do not attend closed board
meetings.

Some of the trustees are more than 80 years old. Their
duties vary from escorting and overseeing contract workers,
hanging the moving pads in and out of the elevators,
maintaining our large flower garden and checking the
emergency-lighting batteries. They were stopped from
climbing ladders to change light bulbs and from going on the
roof.

Is there any liability in allowing these people to do these
jobs?

A. The association will not incur liability from the
activities of the group you described. The trustees are
essentially a maintenance committee. The board has
eliminated possible liability by keeping the trustees off
the ladders.

By the way, the board meetings should be open to the
ownership.

Q. I belong to a homeowners association where every owner
has been deeded one-seventh of the community park. Does this
association follow the same laws as condo associations? In
the past, we have been given an itemization of income and
expenses. For the last two years, I was only provided with
income documentation -- not expenses.

Can members of the board have unlimited terms? Homeowner
meetings have been held once a year. Our rules state they
are to be held twice a year.

A. From your description, the association may be a common-
interest community. In that case, the board has an
obligation to hold open meetings, distribute a budget before
adoption and distribute an itemized accounting of income and
expenses.

No officer can make an executive decision regarding common
area without either an authorization from the board or, if
the declaration so requires, a vote of the ownership.

The terms of the board members are set in the bylaws. Since
your homeowners association is not bound by the entire
Condominium Property Act, the association bylaws may set
term limits. Absent a limit on the number of terms a
director can serve, board members may serve continuously.

Community seminars

*The Illinois chapter of the Community Associations
Institute will conduct a program, "Achieving Better
Communities," from 8:30 a.m. to 4 p.m. Saturday at the
Doubletree Hotel in Arlington Heights. This program will
cover the essentials of running an association, the
authority and limits of a board and accounting issues. Call
847-301-7505.

*The Association of Condominium Townhouse and Homeowners
Associations will hold a seminar from 10 to 11:30 a.m.
Saturday on "Collections and Assessments" at the Schaumburg
Public Library, 130 S. Roselle Rd., Schaumburg.. Call
312-987-1906.

Publication date: Apr 19, 2009

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Q. I live in a small condominium building. We keep our
assessments low by having everyone pitch in and do work
around the building. We hire an engineer, who lives off-
site, to perform maintenance, and we also hire contractors
for major repairs. There is no rule indicating that owners
have to pitch in, but we typically expect each owner to put
in 5 to 10 hours of work per month.

Now that one unit is on the market and under contract, the
president wants to nail down this labor commitment. She
wants to enforce it by fining each owner $25 per hour for
months not worked. She also wants to add a pet weight
restriction. All this is to be done before the new owner
moves in.

Can she obligate the owners to commit to labor services for
the building? If so, can she add a fine for owners who do
not work their required hours? Is it a good idea to start
changing the rules after a contract is signed and before the
unit closes?

The president also wants to get paid for the time and effort
it takes to attend to closing documents. Is she allowed to
get paid for this, or should the money go to the association
fund?

A. Under Illinois law, condominium owners are obligated to
pay assessments for expenses approved by the board. The law
does not require owners to perform services in lieu of
assessments.

The proper way to change association regulations is either
through an amendment to the declaration, approved by an
owner vote, or revisions to the rules that have been adopted
by the board of directors. Rule changes must be sent to the
owners 10 to 30 days in advance of a meeting to discuss the
rules. The board of directors formally adopts the rule
change. There are no shortcuts to either process. In a small
building, the owners should vote to amend the declaration to
adopt a pet weight restriction.

Directors and officers are not generally compensated for
their services unless the by-laws specifically provide for
such compensation. Condominium fees for expenses relating to
a sale or lease are not uncommon, but the charge must be
reasonable and the funds go to the association and not an
individual.

Q. One unit in my association was foreclosed over a year
ago, but the previous owner still lives in the unit and, of
course, is not paying assessments. I understand that the
bank owns this unit now and is responsible for assessments.
The bank has refused to pay assessments until it sells the
property. Agents are ready to market the property but cannot
do so until the unit is vacant. The unit will not be vacant
until the bank formally evicts the prior owner.

This is a frustrating situation because our association
needs to collect all assessments.

Can the bank be required to pay assessments now, or can we
get around the bank by insisting that the sheriff evict the
occupant?

A. Under the Condominium Act, the bank must pay assessments
on the first day of the month after a foreclosure sale. The
board should act aggressively by taking action to collect
assessments now owed by the bank as the unit owner. The
board must issue a demand for possession to the bank
followed by an eviction lawsuit. The only means for the
association to evict the occupant is by a separate lawsuit.
If the association has to proceed with an eviction lawsuit,
you can expect the process to take a minimum of four months.
The downside is that the association will have to advance
legal fees for the collection action but will eventually
recover its fees.

One hopes it will not be necessary to proceed against a
lending institution. The bank cannot avoid its legal
obligation to pay assessments simply by waiting until it
gets around to listing the unit for sale. It is unfortunate
that the lending institution does not follow its legal
obligation. The bank's inaction will not get a bad loan off
its books.

Q. I live in a community with various size units. My board
tells me that Illinois law requires that units be assessed
on the basis of a percentage of ownership, meaning that the
larger units pay more in association fees. Is this correct?

As a larger unit owner I do not get any more privileges than
a small unit owner.

A. You have a larger vote to go along with your higher
assessments.

If your association is a condominium, both assessments and
voting rights are determined by percentage of ownership. The
percentage is based upon the original listing prices for the
units. The percentage concept is followed by condominiums
throughout most of the country.

Publication date: Jun 7, 2009

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Q. Our 75-unit condominium association suffered common-area
building damages due to the error of a workman. It took
approximately four months to settle the liability claim
because of paperwork snafus, adjuster errors and
difficulties in getting bids.

Some of our owners wanted us to immediately fix the damaged
areas and pay for repairs from association reserves, then
for the association to be reimbursed.

Finances are tight in our association, and the board chose
to wait for the settlement.

A group of owners is now circulating a petition to demand a
meeting explaining the delays in detail. These owners want
reports of all contacts with the insurance adjuster and
bidders and an explanation of why everything took so long.

Is four to five months really slow for such a process? We
are being harassed for a repair schedule, and the ink is
barely dry on the settlement.

A. In this case, the owners are right. Under Section 18.4(a)
of the Condominium Act, the directors have a duty to repair,
maintain and administer the property. The board cannot allow
damaged property to deteriorate further while you wait for
reimbursement from an insurance carrier. The board should
have performed the repairs with reserve funds, if necessary.
Four to five months is too slow a process to repair damage
to the common elements.

Q. The president of our association misrepresented herself
to be a unit owner. Her name was added to the title of the
unit during her second term of office when it was discovered
that she was not an owner.

During one of her terms, she spent 300 percent over budget
on building improvements with no association approval. What
are the legal ramifications of having a person in the
position of collecting and spending funds when they are not
technically authorized to do so? How do we ensure that this
does not happen again?

A. Individual directors do not make spending decisions.
Either the board majority makes these decisions at an open
meeting or the board majority sits idly by while individuals
control the association.

Decisions made before the title status of this owner was
known are not invalid if her vote was not a deciding factor
in the decision. The association is still bound to outside
parties when it appeared that this "non-title holding
director" had authority for her actions.

Before preparation of voting documents, the board should
require that all candidates produce proof of their title
ownership in the form of a deed or title insurance policy.

Q. We have four associations for the residents and two
associations that run the swimming pools. A new president of
one of the associations obtained control of the master
association board and ousted the management company. Now the
association is being managed by this individual and his
wife.

This individual makes decisions on his own. His wife has
taken over as the managing agent. One director was recently
elected and resigned one month later because this president
likes to have workshops where decisions are made and owners
are told about the decision after the fact.

He seems to be dictating what is done around our complex.

What can the owners do, and is he incorrect in the way he is
operating the association?

A. If the remaining directors and owners are willing to let
someone with no professional management experience control
their most valuable asset, they have themselves to blame.

No one individual should take control of a condominium
board. Decisions are made by a majority vote of the
directors at an open meeting.

What should owners do? Elect a new board and return to
professional management.

Q. I live in a loft building that shares a parking lot with
another row of townhouses. Loft owners either have a parking
spot in an open space on a gated lot or in garages on the
gated lot. Townhouse owners have garages attached to their
units, but some also park in the gated lot.

I pay an assessment for my parking spot, as do other owners
of the spots. The garages need to be redone. Who pays for
the repair of the garages, the garage owners or the loft and
town home owners?

A. The answer lies in the declaration of your association.
If your loft building and the town homes are part of the
same association, the open spaces and the town home garages
should be classified as a limited common element to
individual units or part of the general common elements. The
declaration of your association will specify who has the
repair responsibility for the garages.

Publication date: Jun 14, 2009

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Q. I rent a condominium in the western suburbs. I was ready
to purchase the unit last November with a closing date in
the early part of this year. Because I was obtaining an FHA
loan, I was denied the right to purchase the unit by the
association.

Is this something new? My mortgage broker told me later that
the association would change its ruling by the beginning of
this year. Well, that did not happen. Is this common? Does
the person who is trying to sell the unit, owned by his
deceased relative, have any input in the refusal of the
association to permit my purchase? Can I wait for this
change to take place? Should I look elsewhere?

A. The position of the board of directors is totally
unjustified.

A condominium association cannot deny the right of a buyer
to purchase a unit or veto a sale because of the financing
by a prospective purchaser. Condominium associations have
only a right of first refusal. When stated in the
condominium documents, this option simply gives the board
the right to purchase the unit at the same price offered by
the seller.

To complete this purchase, the directors must obtain at
least two-thirds approval of the ownership or greater as
required by the declaration and by-laws.

To clarify this point, House Bill 155 has recently passed
both houses of the Illinois legislature. Now pending with
the governor, the bill would prohibit a board from
exercising a right of first refusal or the right to
disapprove a sale on the basis that the purchaser's
financing is guaranteed by the Federal Housing Authority.

The procedure followed by this board is not common. The
seller of the unit certainly has input in the refusal of the
association and should proceed to close this transaction.
The condominium declaration should also provide that the
board automatically waives its right of first refusal if
that right is not exercised within a certain time period.

There is no reason for you to wait for the board to change
its policy because that policy is illegal right now.

Should you look elsewhere? That depends on whether you want
to live in this community, but one would hate to see the
board succeed with its illegal tactic.

Q. I am a new condominium association president. I took the
position because other residents were either not interested
or simply did not want the added responsibility. I have a
few concerns and am hoping you can point me in the right
direction.

Can you tell me where I can find a good source to determine
my duties and responsibilities as president?

How do we handle owners who are way behind on condominium
assessment payments, aside from letters and phone calls,
which I have already tried? Two condominiums recently have
foreclosed. How do we collect past and current assessments?

How do we notify the City of Chicago of a non-payment of
assessments for condominiums in foreclosure and those who
simply have not paid? I want to make sure the banks and the
city are aware of this issue before reselling these units.

A. Many association presidents accept that position for the
same reasons that you have. You are to be commended for your
dedication.

For a text on the role of the president, I suggest that the
association obtain from the Community Associations Institute
the publication titled "The Board President: Roles and
Responsibilities in Community Associations." Contact CAI at
888-224-4321.

For owners who are delinquent in the payment of their
assessments, the board of directors will retain an attorney
to file an eviction action. Because Illinois is the only
state in the country that permits associations to evict
owners for non-payment of assessments, this step has become
an effective remedy.

Before initiating the eviction, the board must send a 30-day
demand for possession to the delinquent owner.

For units in foreclosure, the purchaser of the unit at the
foreclosure sale must pay assessments commencing on the
first day of the month after the sale. A foreclosing lender
is not responsible for assessments due before the sale.
Under Section 9(g)(4) of the Illinois Condominium Property
Act, the purchaser of a unit at the sale, other than the
lender, or the party who buys the unit from the lender after
the sale, must pay the association up to six months of
assessments that were due at the time of the sale.

The City of Chicago has no role in the collection of
assessments. The foreclosing lender is certainly aware of
the delinquent assessments of its borrower. The association
is a "necessary" party to a foreclosure proceeding.

Publication date: Jun 28, 2009

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Q. Our board holds early morning meetings posted with
minimum notice. As a result, few owners attend these
meetings, allowing the board to proceed with minimum owner
input.

Four of the five board members spend considerable time out
of state at other homes and attend the meetings by phone.
Our association president is here three to four months of
the year and leads our meetings on the phone the majority of
the time.

Can a board member vote by phone? Can a quorum be realized
with two members absent, two members present, and the third
in attendance by phone?

A. While the procedures are legally correct, the notice and
format of your meetings are not designed to communicate
directly with the unit owners.

The purpose of the open meeting provision in Section
18(a)(9) of the Condominium Act is for owners to see how
their directors are making decisions affecting the
association. Meetings should be held when most owners can
attend, which is generally in the early evening.

The Illinois Not-for-Profit Corporation Act also applies to
condominiums. The Non-Profit Act permits directors to
participate at a meeting by conference telephone call. The
conference phone format should be limited to meetings where
a director's schedule precludes him or her from personally
attending.

Yes, there is a quorum when two of the directors are present
and one participates by conference call for a five-member
board. The problem with your association is that the regular
practices of your board do not serve the membership.

Q. I am on a board of five members for a 200-plus condo
complex. When we took over the board last November, the
previous directors had literally left us dollars away from
going bankrupt by allowing the prior management company to
make all decisions.

To remain solvent, three of the five board members acted as
the property manager and are putting in an average 40 hours
per week to manage the property. Two other directors have
declined to help.

Is it professional to inform the other owners of the lack of
cooperation and participation from the other two board
members?

A. An association of your size should not reach the point of
financial crisis if assessments were raised to meet
expenditures. Either your budget was too low or assessments
were not increased to meet your actual expenses.

An association of your size should not depend on volunteer
directors to manage the property. If the board wants self-
management, hire an independent manager with condo
management experience. Volunteer directors are not qualified
to manage a property of this size without professional
support.

Q. I own a condominium and paid $2,000 for my private
storage locker as a limited common element. Due to some
recent break-ins, the condominium board recently changed the
locks on all rooms without notifying owners.

When I asked for a key to my storage room, the board
refused, indicating that keys will be held by security
doormen to gain entry to my storage room. Unfortunately, the
security doorman is on duty from 7 a.m. to 11 a.m. weekly,
and I need access to my storage room earlier than that time.

Can the board restrict my access to my personal articles and
affects?

A. No. Owners should have full access to limited common
element areas.

The board can change to an electric key fob system to enable
owners to gain entry to storage rooms and to prevent access
by unauthorized persons. Owners will simply have to bear the
cost of this additional expense.

The board, however, cannot restrict access to limited common
elements at any time. Just as owners have the unrestricted
right to access their balcony, terrace or parking spaces,
access to a limited common element storage locker is not the
subject of restriction by the board.

Publication date: Jul 26, 2009

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Q. I am on the board of a 24-unit condominium association in
Chicago. In the past two months I have received two requests
from owners to review our declaration and remove the right
of first refusal clause.

Real estate agents are claiming that the recent economic
conditions will make FHA loans more popular with potential
buyers, but the FHA does not write loans when association
documents include such a clause. I have several questions.
Is the right of first refusal necessary to protect the
interests of the association? Do the benefits of the right
of first refusal clause outweigh the possible negatives? Can
the association eliminate the right of first refusal for
purchasers, but retain control for leases?

A. The right of first refusal has very limited value to
protect the association. The right merely gives the
association the authority to purchase a unit at the same
price as a pending contract offer. Unlike cooperatives, a
condominium cannot refuse the application of a buyer on the
grounds of financial or character standards.

In today's market, the benefits of the right of first
refusal do not outweigh the possible negatives. To exercise
the right, the association board must obtain at least the
approval of two-thirds of the unit ownership.

First refusal does not have an impact on the authority of
the owners to adopt an amendment to restrict leasing.
Effective Oct. 1, the Department of Housing and Urban
Development will not require the elimination of a right of
first refusal to a condominium declaration for FHA-insured
mortgages.

Q. I live in a building that is considering a riser-
replacement project. A few owners do not want to wait for
this change and are willing to pay the extra cost to replace
the risers adjacent to their bathrooms while they are
undergoing remodeling work. If we let them proceed as a
board, will the new risers remain common elements? Does this
require additional insurance from the owners?

A. If the pipes are located outside the boundaries of the
unit, they remain common elements. Owners must obtain
insurance from their contractors, naming the association,
the board and any managing agent as additional insured
parties.

Publication date: Sep 20, 2009

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Q. We own a condominium in a 21-unit association. Four units
went into foreclosure, and several other owners are behind
in their assessments.

The association owes its management company past-due fees;
the city inspector indicated that some of the porches must
be repaired at a cost of $75,000; and the association is
behind on its gas bill.

Without asking the owners, the condominium board sent a
letter indicating that each owner must come up with $4,000
by mid-October to pay for porch repairs.

Owners feel quite overwhelmed by the magnitude of the
problems. We will have to take out a loan to pay this large
special assessment. We are looking into other options, which
include bankruptcy or foreclosure.

Is either one of these bad options better than the other?

A. Neither option is attractive. Foreclosure will cause you
to lose your valuable investment.

The board must increase assessments to meet budget expenses.
Porch repairs are mandated by city code. Utilities and
management fees must be paid. The board must provide the
owners with 10 to 30 days of notice of the meeting to adopt
the special assessment.

A substantial increase often means that assessments were not
at a level sufficient to cover current operating costs and
long-term repairs. Disciplined reserve funding should have
solved the porch repair expense.

Q. I have been the president of our condominium association
for a number of years. Some of our past association
secretaries have taken a dismissive view of meeting minutes.

I have always required that the minutes be carefully
reviewed for accuracy, spelling and grammar. Unclear
sentences must be rewritten. I have been told that I am
overly critical and demanding. What are your thoughts on
this issue?

A. As stated in Robert's Rules of Order, minutes are a
record of what was done, not what was said. As the record of
board decisions, minutes are the primary source of defense
for directors in a lawsuit. Motions and votes must be
correctly stated.

Minutes do not contain every statement made by a director.
The minutes must be sufficiently clear to indicate to unit
owners and outside parties that decisions were made by the
board.

Q. Our association declaration of covenants includes an
article restricting the rental of units by an owner. This
provision states that no unit shall be leased or used for
hotel or transient purposes. Would it be a violation of our
declaration for an owner to swap his unit for a vacation
rental?

A. Yes. Using a unit for business purposes or regular short-
term leasing is a violation of the declaration. Transient
use is the regular occupancy of a unit by different people
for a short term.

Publication date: Nov 15, 2009

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Q. The board of directors wants to undertake a project to
redecorate, refurbish and improve resident hallways.

To pay for the project, current board directors plan to use
funds from our reserve that is more than 35 percent of the
association's fund balance.

In a letter to the owners announcing the plan, the board
said that this "loan" will be repaid and the replacement
reserve account made whole in six years. The repayment will
be made through increased monthly assessments.

What legal documentation should the owners receive to ensure
that the repayment plan is an obligation of the association
members and future boards? Does such a loan obligation run
with title in a unit sale?

A. To assure the owners of the association's commitment to
this financial plan, the owners must see a line item in the
current and subsequent budgets for the reserve fund
repayment.

The board should also adopt a resolution at an open meeting
to reflect this financial policy.

Unit owners have a right to inspect certain financial
documents with a proper written request. Owners should be
able to inspect reserve fund account statements. The board
must also distribute an annual accounting that should
reflect the payback of the reserve account.

The financial plan is not a lien against individual units.

Consistent with the Condominium Act, the "loan" will be
funded by assessment collections. The reserve fund repayment
will be a common expense that should be referenced in the
budget and paid by assessments from the unit owners.

Q. Our condominium building will be 3 years old and 75
percent sold this month. Our builder has plans for a second
building, being Phase II of the project, with a connection
through a garage. Currently, there is no firm timetable for
the second building because of the economy.

Many of the owners of our building are ambivalent about
forming a board. Many owners would prefer that we simply
form nothing more than an ad hoc committee.

What are our rights and responsibilities?

A. The owners will make a major mistake if you do not take
the initiative to form the first unit-owner board of
directors.

Illinois law requires the developer to transfer control to
the first unit owner board when 75 percent of the units are
sold or three years from the date the declaration was
recorded, whichever is earlier. Your development is now at
the three-year mark.

The owners want to control the finances and operations of
the association. Section 18.2 of the Illinois Condominium
and Property Act, which dictates the turnover process,
provides that the developer must relinquish control and can,
essentially, resign from the board after notice to the
owners.

The statute does not reference the phasing of condominium
projects in describing the three-year turnover date. Given
the uncertainty of a second building phase, the owners must
control the association as it has been presently
constructed.

Publication date: Feb 21, 2010

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Q. I live in a 50-unit building in Chicago. There are only
two volunteers on the board who have never been formally
elected. A third owner has now volunteered to serve as a
director.

I wanted to be on the board to make things happen in our
building, but the other two volunteer board members did not
want any more owners on the board. Since they volunteered
and were not formally elected, is that legal?

A. Practically all condo directors are volunteers. The board
is not a secret society. Based upon the Illinois Condominium
Property Act, the Not-for-Profit Corporation Act and your
bylaws, directors must be elected by the unit owners. The
number of directors is stated in your bylaws. The minimum
number of directors for an association that is a not-for-
profit corporation is three board members.

The bylaws should also state when an annual meeting is to be
held each year to elect the board. Either demand that the
volunteers/directors follow the requirements of the bylaws
or persuade fellow owners to call a special meeting of the
association to elect directors. Directors have a fiduciary
duty to the unit owners. One of the requirements of a
fiduciary is to read the governing documents. The exercise
resolves many disputes.

Q. I am an owner in a condominium complex in the south
suburbs. For the past couple of years, the board has
increased our assessments for major repairs without
segregating the funds in a special assessment account.

We are still paying on a loan for balcony repairs. The
repair work was shoddy and needs to be redone at a major
expense. There are also no reserves set up for major capital
repairs. Is the board in violation of the Condominium Act?
The owners are not getting copies of audited financial
statements unless they request it.

A. The board of directors does not have to segregate special
assessment collections in a separate account, but must be
able to keep accurate records of the special assessment
collections.

If the association still has a loan, the loan covenants
should require the association to maintain a reserve account
in a specific amount. Section 9(c) of the Condominium Act
also requires the board to maintain reasonable reserves. The
most important factor for a reasonable reserve fund is the
repair and replacement costs for the major components of the
property. The board is required to send owners an annual
statement of income and expenses.

Publication date: Sep 5, 2010

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Q. Our condominium board had been considering a five-year
plan that included window replacement. A contractor told the
board that the association has at least five more years left
for these windows.

Now the board is considering window replacement by the end
of the year to take advantage of the energy tax credit.
Recent estimates for window replacement will mean an
assessment of approximately $3,000 for each unit, with a tax
credit of $700. Most unit owners seem to support this
program because they intend to stay in their unit and will
save money by doing the project immediately.

We placed our unit on the market and we plan to move in the
next couple of months. We have no interest in the immediate
window-replacement project and, quite frankly, cannot afford
to pay the $3,000 right now.

Since the window work is not necessary, can the association
still force us to pay the $3,000 to have windows in our unit
replaced?

A. Yes, the board can levy a special assessment to all units
for window replacement. Owners of units on the market are
subject to the assessment.

In reviewing future capital expenditures, the board must
consider the long-term needs of the building, as well as the
short-term concerns of owners who may intend to sell. Given
the limited useful life of the windows, it may be prudent to
replace these components if the directors can obtain a tax
benefit for the ownership.

While you may not support the window replacement assessment,
the project may be important to a prospective purchaser.

Q. I have served as the president and treasurer of our
40-year-old homeowners association west of Chicago. The
board of directors is considering expenditures with an
estimated cost between $500,000 to $1 million to comply with
the Americans with Disabilities Act. The project will
involve remodeling our clubhouse to replace windows, adding
extra handicapped parking spaces and constructing a larger
access ramp.

I am told that all of these projects are required by the
ADA.

Do we have to comply with one or more of the requirements of
the ADA since we are a private community that has existed
for 40 years? We have made reasonable adjustments to help
handicapped residents. This proposed expense will be a
hardship for a large percentage of our owners who live on
fixed incomes.

A. The association is subject to the Americans with
Disabilities Act only if your community has facilities that
are open to the public. Otherwise, the property is subject
to the Fair Housing Amendments Act. If the property was
built before 1991, the Fair Housing Act requires the
association to reasonably accommodate the needs of
handicapped residents. Handicapped residents may install
reasonable accommodations at their cost.

It is prudent for a community to maintain facilities that
assist handicapped residents on the property. However, the
board is not required to comply with the details required by
the ADA if the clubhouse or other amenities are not public
facilities.

Q. Is there a standard file-retention policy for condominium
associations? How long must we retain bills, invoices, bank
statements, correspondence and tax returns? Is it legal to
maintain electronic versions of these documents rather than
paper copies?

A. Your retention policy is primarily guided by Section 19
of the Illinois Condominium Property Act, which governs the
disclosure of documents to unit owners upon request. Items
such as bills, invoices and bank statements are part of the
association's books and records, which the association must
maintain for a period of 10 years. Notwithstanding the
statute of limitations for tax claims, the board should
maintain all tax returns filed by the association.

The board can maintain electronic versions of these
documents so long as paper copies are available to the
owners upon request.

Publication date: Nov 21, 2010

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Q. I live in a newer condominium building with several
commercial stores on the ground floor. We recently took
control of the association from our developer. There are no
assessments coming from any of the commercial units that the
developer owns. They do not pay toward general maintenance
like snow removal, landscaping or any future long-term
repairs.

Is it legal for a developer to set up his commercial tenants
so as to exclude them from paying assessments or building
repairs?

A. Most mixed-use developments consist of separate
residential and commercial properties. The commercial
property is linked to the residential portion by a
declaration of covenants. These declarations state that the
commercial property pays a share of expenses for services
and facilities used jointly by both property owners.

Have your association counsel determine if there is a
separate recorded declaration of covenants with a cost-
sharing program between the condominium and the commercial
property.

Q. If our condominium board wants to make a new rule or
modify a rule, do they have to give a 30-day notice to the
unit owners and then vote on it at an open board meeting in
order for the rule to be affirmative?

A. Under Section 18.4 of the Condominium Act, the board must
call a special meeting of the unit owners to discuss a
proposed rule. Unit-owner meetings are called on 10 to 30
days' notice. Following the unit-owners meeting, the board
must vote at a directors meeting to formally adopt the
rules.

Q. I was recently re-elected to our board of directors in
October. Although I still own a unit, my employer
transferred me to another state. One board member has been
trying to get me off the board since she came on last year.
She wants to change the declaration to state that a board
member cannot call into a board meeting and be considered
present. The worst part of this is that she has taken some
paralegal classes and is now quoting law. Pretty scary!

Is it legal to change the declaration and prohibit a board
member from calling into a meeting?

A. No. Under Section 18.3 of the Condominium Act, the
provisions of the Illinois Not-for-Profit Corporation Act
also apply to condominium associations. The Not-for-Profit
Corporation Act allows directors to participate in a meeting
by conference telephone.

It is not possible to amend the declaration to contravene
the law. Section 2.1 of the Condominium Act requires all
declarations to be consistent with state law.

Q. In June when I purchased my unit as an investment, I told
a representative of the board that I planned to rent my
unit. He did not advise me of any change in their rental
policy. My unit is now on the market to rent.

Last week, the board contacted all owners stating it
intended to limit owners to renting their unit for a maximum
of two years during the life of their ownership.

Is this a decision that the board can take or does it go to
a vote of all owners? If the board does institute this
policy, does an investment owner have any rights or
recourse?

A. The association does have the authority to limit leasing.
Leasing limitations can be done by an amendment to the
declaration or a board rule. The declaration amendment is
preferable, because owners vote on the change. Owners can
submit a petition signed by 20 percent of the membership to
vote on a leasing amendment to the declaration, with an
exemption for all current lessors or current owners.

The practical question is whether an excessive number of
leases in your building affects unit values, mortgage
financing and insurance.

Publication date: Jan 2, 2011

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Q. Our 32-unit condominium building has an ongoing lawsuit
against the developer. While the case has gone to
arbitration, the association has started the repair process
to prevent further damage to the building. The board has
levied a special assessment for these repairs. The board
intends to reimburse the owners for their assessment
payments if and when there is a settlement. If anyone sells
their unit, the association will reimburse the current
owners for these assessments.

Since the unit owners are, in essence, providing a loan to
the association until we are reimbursed from the lawsuit,
how can the owners retrieve their "loan" once the settlement
is paid, particularly if their units have been sold?

A. The owners are not issuing a loan to the association.
Regardless of whether the lawsuit generates a recovery, the
board has to maintain the common elements and mitigate any
further damage to the building. The owners have to pay for
this repair work from their assessments.

Once owners sell their units, they no longer have a
contractual relationship with the association. The board has
no obligation to reimburse prior owners if funds are
recovered from the developer.

The seller and the buyer of the unit must negotiate, between
themselves, any reimbursement or credit from future
settlement proceeds.

Q. We have had many discussions in our association about
smoke infiltration from smokers' units. We have been told
that we cannot prevent an owner from smoking within his or
her unit.

In a previous question, you referenced two steps the board
can take to regulate smoke infiltration. What are these
steps?

A. Given the fact that the hazards of secondhand smoke are
clearly stated in the Smoke Free Illinois Act, the board can
adopt rules that minimize smoke transmission as a nuisance
or an annoyance to others. Associations have adopted rules
that require a smoker to open both kitchen and bathroom
vents, install and operate an air purifier and seal openings
in the unit.

The only valid means to prohibit smoking in the building is
an amendment to the declaration and bylaws approved by the
required number of unit owners. One condominium building in
the city has taken that exact step.

Q. I am a board member of a 223-unit, high-rise condominium
building. We have tried in vain to change the declaration to
limit leases to a maximum of 25 percent of the units.

Will a board rule allow us to limit leases and, if so, will
such a rule hold up if challenged in the courts? We have
received conflicting information regarding this result and
would love to have a definite answer.

A. The definite answer is that the rule will succeed if it
has the support of the unit owners. Courts in Illinois and
throughout the country have held that declaration amendments
are presumed to be valid. Rules are subject to challenge on
the basis that the regulation is not reasonable or that the
rule is not consistent with the declaration.

Courts have upheld leasing restrictions on the basis that it
is a reasonable restriction to promote the residential
character of the property. In a similar case involving pets,
the Illinois Appellate Court upheld a prohibition against
dogs despite the fact that the declaration did not
specifically prohibit such pets. Given the judicial
recognition of board powers to adopt reasonable regulations,
a rule should succeed if challenged.

Q. I live in a 32-unit condominium building. Can the
declaration restrict board members to residents living on
the premises? Doesn't this create two classes of ownership
and violate the Condominium Property Act?

A. Absolutely. There is no basis to restrict board members
to residents of the association. Both resident and
nonresident-owners have a property interest in the
condominium. The only legal qualification to serve on the
board is to be a title owner.

Publication date: Feb 27, 2011

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Q. The slow and steady advance of electric vehicles has
reached our vintage lakefront condominium property. An owner
advised the board of his intention to purchase a plug-in
electric vehicle and is requesting permission to install a
charging station in his assigned parking space.

Parking spaces in our garage are assigned, but not owned.
How should the board respond? What responsibility does the
association board have to allow common elements to be
altered to accommodate the charging station? Who pays for
the electric service? What requirements, such as maintenance
and insurance, should be assigned to the individual owner?
Does the board have to obtain approval from the other
owners?

A. The subject of electric cars and charging stations is
becoming the new hot topic for condominiums. The board
should certainly encourage the purchase of electric vehicles
and accommodate the necessary stations to service the
automobiles.

At the present time, the board should grant the owner's
request to modify the common elements by installing a
charging station in the parking space. With that consent,
the board may have to determine the means to bill the owner
for electricity as a user charge, unless the charging
station has a separate meter. With any addition to the
common elements the board may approve, the directors will
require the owner to provide the necessary insurance and
indemnify the association for any damages arising from the
use or operation of the station.

Having addressed this application, the future for
associations is to provide multiple charging stations in a
garage and make the maintenance of these facilities part of
the common expenses. The board can enhance the marketability
of the building by offering this amenity for prospective
buyers.

Q. Our two-story condominium was rendered uninhabitable
because of repairs to the structure and foundation beneath
our unit. We were forced to rent another apartment since
December. The landlord of that unit obtained a long-term
tenant, so we had to find a new and more expensive
apartment. Our condominium board has only agreed to
reimburse us for the amount of the rent from the first
apartment. This repair project has stretched out to seven
months, which has forced us into finding longer-term,
temporary housing.

When a condominium association makes repairs to the common
elements that renders our unit uninhabitable, are they
obligated to provide us with suitable lodging or reimburse
us? Do they have to provide equal housing to our original
three-bedroom unit? If the repairs cause damage to our home,
is the association obligated to make the repairs?

A. A condominium association is not obligated to find
alternative housing for unit owners during a period of
common element repairs. Owners should purchase relocation
insurance to cover this situation. If your unit sustains
damage during the common-element work, a contractor may be
liable for damage arising from its negligence, and the board
should require insurance to cover that contingency. The only
basis for direct association liability arises when the
declaration specifically makes the association liable for
unit damage arising from common-element repairs.

Q. Our condominium association is planning to do some work
on the exterior of our building. Owners will be charged for
the work involved. The board had estimated costs for the
entire project and the estimated assessments per unit for
several months. They are unwilling to share this information
with the owners until they send the project out for bid and
get the final price.

I have requested the estimated breakdown multiple times. The
board does not want to release estimates. Is this legal? I
want to budget for my share.

A. The board is following the proper procedure. The
estimates the board received for the project will not be as
accurate as the cost generated by the competitive bidding
process. Once the board obtains the competitive bids and
selects a contractor, the directors will be in a position to
convey the contract price and the accurate assessment cost
per unit.

Publication date: May 8, 2011

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After years of negotiations, the Community Association
Manager Licensing and Disciplinary Act will shortly become
part of the Illinois regulatory process and with it the
formal designation of community association managers as
professionals.

The new law requires those who manage associations of more
than 10 units to have a license. Managers must obtain a
license within one year after final licensing rules have
been adopted by the state.

The law became officially effective July 1, 2010. The
Illinois Department of Financial and Professional Regulation
appointed a seven-member board consisting of five property
managers and two unit owner representatives. Draft
regulations were adopted by the licensing board.

As required by state law, these rules had been formally
published for the first of the two required public comment
periods.

The premise of the statute is to require a community
association manager to have a license if the manager
performs services for compensation. Managers of
condominiums, cooperatives, town homes and other residential
communities will have to obtain and maintain a license.

A community association manager performs certain
identifiable tasks such as collecting assessments,
controlling and disbursing funds of the association, holding
meetings and preparing a budget. A manager does not include
the support staff and administrative personnel of a
management organization. Volunteers who perform services for
self-managed communities also will be exempt from the
licensing requirement.

The primary qualifications of a manager are that an
individual must be at least 21 years old, completed 20 hours
of community association management courses and passed one
of two specified exams. As a concession to experienced
managers, those who have performed community association
management for a period of five out of the last 10 years are
exempt from the initial educational and testing requirement.
They simply have to apply for a license. In the future, all
licensed managers will have to fulfill a continuing
education requirement, which has yet to be determined.

People who have received certain professional designations
from the Community Associations Institute and the Institute
of Real Estate and Management also will qualify for the
license.

The required educational courses will cover subjects
essential to the proper management of an association,
including state and federal law applicable to community
associations, association budgets and finances, maintenance
and operations, insurance and the conduct of association
meetings. Like other state licenses, community association
managers must renew their professional designation every two
years.

A key provision in the licensing act and proposed rules is
the power of the Department of Financial and Professional
Regulation's Division of Professional Regulation to suspend
or revoke a license for unprofessional conduct by a manager.
Conduct that qualifies for suspension or revocation includes
the failure of the manager to comply with the applicable
governing documents, as well as the policies and procedures
of the client association; knowingly misrepresenting
material facts or acting in a fraudulent manner; providing
legal advice without being licensed to practice law; failing
to disclose conflicts of interest; and failing to act in a
manner consistent with the fiduciary duty of a licensee and
to conduct one's self in a professional manner.

Other important aspects of the act are the requirements that
the licensed manager provide to the association a fidelity
bond covering loss of funds, as well as errors and omissions
insurance. Funds for the operation of this program will come
from fees charged to licensees for application, testing and
license renewals.

Community associations will also pay a yearly fee of $50,
plus $1 per unit to support the program and provide a fund
for financial recovery for manager financial misconduct.

Given the number of associations in Illinois and the amount
of funds handled by community association managers, the
Community Association Manager Licensing and Disciplinary Act
is the proper response to ensure professionalism and provide
consumer protection to the multifamily residential industry.

Publication date: May 29, 2011

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Q: The president of our board owns a landscaping company
with her husband. Since the inception of the association,
the board has awarded her company the contract to maintain
all areas in the association. Isn't this considered a
conflict of interest? Her response is that the company has
submitted the lowest bid for the landscaping services. Is
she in a position to know the other bids for competing
companies?

A:. There is no direct prohibition against a homeowner
association director or a company with whom the director has
an interest from doing business with the association. As a
homeowners association subject to the Illinois Not-for-
Profit Corporation Act, the president must disclose her
interest in the contract and cannot vote on the agreement.

Section 108.60 of this statute states that if a transaction
or contract is fair to the corporation and all facts are
disclosed, the director with an interest in the contract may
not vote on the agreement. The independent directors, by a
majority vote, may choose her landscaping company.

Q: I am a board member of a small suburban condominium
association. About two years ago, we found out that the
current president had been taking money out of our
association account and had not paid assessments in three
years. After removing him from office, we had an accountant
conduct an audit for missing funds. We had an attorney
prepare a demand letter to the president for the money, but
he has not responded. We do not have the funds to hire an
attorney to file lien paperwork. What are our options in
terms of getting our money back?

A: If the association has fidelity insurance coverage,
required under Section 12(a) of the Condominium Act for all
associations with more than six units, the board may file a
claim for the loss with your fidelity insurance carrier. If
your association qualifies for this coverage, you must have
fidelity insurance to cover all persons who handle
condominium funds, including reserves. If the association
does not have insurance, the only alternative is to sue the
former officer for the funds.

The board should also take legal action to collect the
unpaid assessments from this individual. It is irresponsible
for a board not to pursue a delinquent director for
assessments.

This scenario should teach the board a lesson to pay closer
attention to its financial statements, obtain an audit of
your funds each year and purchase the required fidelity
insurance.

Q: I live in a common interest community and we have
restrictions regarding the exterior of our homes that are
known as design guidelines. To make the guidelines less
restrictive, it takes a formal vote of the entire community,
with 51 percent or more of the eligible members voting to
modify the guidelines.

With about 5,500 members eligible to vote, my reading of the
new law indicates that 20 percent of the eligible voting
members represents a quorum. I assume 51 percent of those
voting is required to pass this issue. What's your opinion?

A: Based upon the Common Interest Community Association Act,
the quorum requirement for common interest communities is 20
percent of the total ownership. The percentage of owners
necessary to modify the design guidelines should be stated
in your declaration. Some extraordinary decisions require
more than a majority vote.

Q: You have mentioned that percentages of ownership are
based upon the original sales price set by the developer of
a condominium. It is my understanding that assessments are
based on the percentage of ownership, but that this
percentage is based upon the percentage of square feet
occupied by the condominium. Which is correct?

A: Based upon Section 4(e) of the Illinois Condominium
Property Act, percentages of ownership are determined by the
original value of the units set by the developer. The square
footage of a unit is only one factor a developer takes into
account in determining the original sales price for a
condominium.

Publication date: Nov 27, 2011

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Q. Our board has waived the assessments for all unit owners
for December over the past two years as a holiday gift. They
have taken money from the reserves to make up that amount in
the budget. I believe this is a violation of the Illinois
Condominium Act and would appreciate your opinion.

A. Your board has gotten carried away with the holiday
spirit. The purpose of reserves, stated in Section 9(c) of
the Condominium Act, is to finance capital expenditures and
repair and replacement of the common elements. Reserves are
generally not a substitute for income from assessment
collections.

While the association may have a reasonable amount of
reserves after the gift, the board would better serve the
owners by adjusting the budget rather than depleting
reserves in the spirit of the holiday. At some point, the
board will need those funds for major replacement projects.
Owners will expect a significant reserve fund to finance
these projects.

Q. I recently took over as president of my condominium
association and am trying to determine if we are paying too
high a fee to our property management company. I understand
that each condominium is different, so trying to compare
management fees from one building to another is not an exact
science.

Can you provide any guidance and what an appropriate
property management fee should be?

A. The best means to determine the market price of a
management fee is to solicit bids from other companies.

Management fee structures differ between city and suburban
associations. You may also contact presidents of neighboring
condominium associations and determine what their management
fee structure has been.

Remember that quality of service, and not the price, should
be the primary consideration for your board in selecting or
retaining a management company.

Q. What are the requirements of security cameras? The
residents of our association are not aware and the board did
not inform building residents of hidden cameras. Are these
cameras a violation of civil rights laws?

A. No. Security cameras are a reasonable step for the board
to preserve the security of your association. Well-placed
cameras can spot thefts and vandalism. The board of
directors is responsible for the security of people and
property on the condominium property. The directors can
determine the means to administer and maintain security on
private property. As long as security measures do not target
individuals in protected classes, the security operations of
a condominium association do not violate applicable civil
rights laws.

Q. I am a president of a small, self-managed cooperative.
Can we qualify for Federal Housing Administration
certification? Do we need to worry about new licensing rules
for community association managers?

A. Cooperatives are not eligible for FHA financing except
for a cooperative-to-condominium conversion.

If your cooperative is 10 units or less, or you do not pay
compensation to individuals to perform management services,
your building is not subject to the Community Association
Manager Licensing and Disciplinary Act. Absent these
exemptions, however, the licensing statute applies to the
paid manager of a cooperative building.

Q. We have a condominium president who acts like a dictator.
I think that the board's selection of a president does not
convey additional powers to the president. Please advise.

A. The proper role of a condominium president is not to set
policy, but rather to carry out the decisions of the board
and provide guidance to management for those decisions and
issues that arise between meetings. Presidents are elected
by the directors at an open meeting and not selected in a
closed session.

Most association presidents exercise sound business
judgment, seek consensus with their boards and provide
leadership. Some directors in this position are enthralled
with their authority. I never understood that mentality. The
job does not pay that well.

Publication date: Jan 8, 2012

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Q: I bought a unit eight years ago as an investment property
where I plan to live when I retire. At the time of the
purchase, there were no rental restrictions for the unit. A
recent proposal by some residents to increase the number of
rentals from 5 percent to 10 percent of the building was
defeated.

The current language of our declaration prohibits units from
being leased for less than six months but also states that
there is a 5 percent limit on "lease-restricted units" that
do not have mortgages insured by FHA, guaranteed by the VA
or owned by Fannie Mae. No additional units in this category
can be leased if the total number of these lease-restricted
units exceeds the 5 percent limitation.

The verbiage seems very confusing to me. As explained by
management, if I have a VA, FHA or Fannie Mae loan, I can
rent my unit. I have a Freddie Mac loan and have been told
by the manager that once my lease runs out, I have to stop
leasing my unit or refinance with an approved mortgage
program.

Any suggestions on what I can do?

A: The provision of the bylaws you cited is not valid. The
bylaws create two different leasing standards, depending on
the nature of the unit mortgage. Rather than treating all
owners equally on a prospective basis, the board has
restricted leasing to those units with specific mortgage
programs.

The owners should amend the bylaws to establish a numerical
limit on the number of leases and eliminate confusion from
this unreasonable provision in the bylaws.

Q: I bought a new condo five years ago. I was given a
handicapped space that is approximately twice the width of a
standard space. The developer told me I could use the extra
space for guest parking. I have used the extra space for
that purpose for the last five years.

I just received a notice from the board that association
rules do not allow for parking two cars in a handicapped
space that was designed for one car.

By not enforcing this rule for the past five years, has the
board waived its right to enforce the rule?

A: The garage of your association is part of the common
elements. The board can regulate parking in the common
elements but must enforce rules on a consistent basis.

If the board has deliberately ignored the enforcement of
this rule for five years, you may have a valid waiver
defense. The primary question is when were the rules changed
to prohibit parking two cars in a handicapped space?

Q: We are a 40-unit condominium unit in the northern
suburbs. Historically, we have found it almost impossible to
get owners to serve on the board if a midyear vacancy
occurs. We have followed the practice of asking for
volunteers to be alternates after the board election at our
annual meeting. This has been working well.

Is this an acceptable practice and can these alternates be
included in board email discussions between meetings or
closed-session discussions during meetings?

A: The Condominium Act does not provide for a position of
alternate board members. The practice your association has
followed is not acceptable. Alternates cannot be included in
board meetings, closed sessions or any other nonmeeting
discussions between the board.

If this practice provides a guideline for the board to fill
vacancies, it may serve a limited purpose. Until such time
as a unit owner has been officially elected or appointed to
the board, he or she may not participate in board
deliberations.

Publication date: Jan 29, 2012

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Q: I have concerns about changes to a security monitoring
system in my town house development.

We have a monitoring system connected to an outside security
service for burglary and fire. The association board is
seeking to cancel the outside service that monitors the
system and retain only the fire monitoring program that
signals directly to the local fire department.

Our declaration states certain powers and obligations of the
association, including the power to acquire and pay out
funds for common expenses, including security services,
security personnel, and maintenance and operation of a
central fire and a security signal-receiving system.

Can the association board cancel the burglary monitoring
system without having to obtain a vote by the unit owners?

A: The language of your declaration means that the board has
the authority to spend association funds for an outside
security service but also has the authority to eliminate the
expense.

Whether eliminating a security service is prudent depends
upon the nature of your development and any history of
incidents.

If a security breach occurs after the board eliminates the
service, the directors will have to answer to the owners.

The board can make this decision without the vote of the
ownership.

Q: Our board has entered into a contract for a common area
laundry facility that gives the vendor the exclusive right
to operate machines in the building.

I was told that the association will breach that contract if
the board allowed any owner to install individual machines
in our unit. Can the association board bind me to a third-
party contract?

A: To comply with a master laundry agreement, the board can
prohibit owners from installing machines in individual
condominium units.

The board controls the common elements and may bar laundry
equipment that connects to common element pipes.

Q: I live in a condominium building that was built about 10
years ago. The association received an opinion from the
board's attorney stating that the association should pay to
insulate walls in the end units of our complex. It appears
that the developer did not insulate these walls when the
building was originally constructed.

Is the association liable for omissions or deficiencies in
original construction by the contractor when the building
was built?

If the association ends up paying for insulating the units,
are the members liable to pay for other construction
deficiencies?

A: As provided in many declarations, associations are
generally not responsible for the correction of construction
defects.

The board is responsible for maintaining the common
elements. If the board concludes that the absence of
insulation in certain areas has created an unreasonable
amount of noise to owners living in adjacent units, the
board may take steps to minimize this nuisance.

Q: I own and rent a unit in a condominium building. I
expressed interest in running for the board. I was told by
the directors that I could not run because I do not live in
the building.

The election proceeded without me having an opportunity to
be a candidate. From previous columns, I understand that the
only qualification to run for the board is to be an owner. I
represent more than 50 percent of the percentage interest in
the common elements.

Can I invalidate the results of the prior election and call
for new elections based on the fact that I was denied the
ability to run for the board?

A: Yes, you have a right to challenge the election process.
The board cannot discriminate against a nonresident owner by
prohibiting you from running or serving on the board.

To challenge the election, however, it will be necessary for
you to file a lawsuit seeking to overturn the results of the
election.

Publication date: Feb 5, 2012

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Q. I bought a new condo seven years ago in a development
with the intent of leasing it to supplement my retirement
income. I was able to successfully rent the unit for three
or four years. The board then initiated a rule not to allow
any more rental units and insisted that I sell my unit after
the end of my last lease.

I put the unit on the market last year, but it has been
sitting unsold. I have asked the board for permission to
rent the unit while it is still up for sale but the board
declined my request. I have lost a tremendous amount of
money and see no prospective buyer in this depressed market.

Do I have any case for litigation against the condo
association board? This has been a real financial burden.

A. The board of directors had a legitimate right to adopt a
rule or pass an amendment with the association's vote to
restrict leasing. The 1995 Illinois case of Apple II Condo
Association vs. Worth Bank and Trust Co. confirmed the right
of an association to restrict leasing and apply that
restriction to current owners.

The rationale of the Illinois court, followed in most
states, is that a condo association is a form of housing in
which the rules regarding the use of a unit can be changed.
The court stated that leasing restrictions can be imposed
either by board rule or an amendment approved by unit
ownership.

Your dilemma is similar to that of other owners in today's
market. The directors have the discretion to grant an
exception if a so-called hardship clause is part of the
leasing restrictions. The directors also have the legal
right to decline your request.

Q. I am the president of our association and am wondering
about the difference between a managing office and a
registered office? Are they one and the same? Our bylaws
refer to the managing office, but the Not-for-Profit Act
only talks about a registered office.

I also have heard conflicting opinions regarding whether our
association should comply with the association's declaration
and bylaws or the Illinois General Not-for-Profit
Corporation Act. Is there a difference?

A. The managing office generally refers to the office of the
property manager on-site. The registered office is the
location of the person appointed as the registered agent of
the association. The registered agent is the official
representative of your not-for-profit corporation. The agent
files the annual report with the Illinois secretary of state
and receives official documents for the association. The
registered office may be the location of the management
company or the association's attorney if either party has
been appointed the registered agent.

If your association is for a condo building, the association
has the powers and obligations of an Illinois not-for-profit
corporation. The Not-for-Profit Corporation Act applies,
however, only to the extent that the Condominium Act and the
declaration do not address a particular issue.

Q. We are a 26-unit condo building. I have been there for 13
years. When I purchased my condo, it was with the intent of
renting it out for investment purposes in the future. About
six to seven years ago, we had an awful rental situation in
our association. The board of directors passed a bylaw
amendment stating that no rentals were allowed unless the
owner had a hardship and, in that case, with a maximum
rental of two years. The owner has the obligation to prove
his or her hardship.

I want to purchase another home, but do not want to be
caught with two mortgage payments. Can I be grandfathered in
under this bylaw amendment?

A. As explained in the first question, despite your intent,
the association has the power to restrict leasing. It
appears that the leasing restriction in your association was
imposed by an amendment to the declaration and bylaws that
were approved by the unit ownership.

You are not exempt or grandfathered from this leasing
restriction unless the amendment specifically exempted
current owners.

The board of directors has the discretion to determine
whether a hardship exists to justify leasing your unit.
Ultimately, the board of directors makes the business
judgment as to whether a hardship exists because of the
difficulty in selling units.

Publication date: Nov 30, 2008

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Q. Last year, a board member discovered other directors have
allowed our association secretary to be 10 months delinquent
in his assessments. No action was taken. Other unit owners
have been in the collection process for the same violation.
After this problem was disclosed, the incumbent board
members decided not to run in the next election.

We have another annual meeting this fall. It appears that
some of the prior board members are going to run again
despite their previous failure to uphold their fiduciary
duty. Can they be held accountable?

A. Directors violate their fiduciary duty by failing to
collect assessments. The most serious violation by a board
is to ignore the delinquency of a fellow director. Directors
who give board members a pass on assessments are not subject
to prosecution, but unit owners can remove them by a
membership vote.

Past directors have the right to run for the board again.
But owners have the right to discuss with the electorate the
past failures of those candidates and their qualifications
to serve.

Q. The big issue in our condo complex is to gain control
over the number of rentals in the association. Is there a
hard-and-fast fact as to the affect of rentals on the value
of our units? Owners who rent claim that controls are
detrimental to our values. Many of us believe the opposite.

A. The impact of condo rentals on market values is a matter
for review by individual boards and real estate
professionals in your area. An excessive number of rentals
will affect insurance rates in a condo association and may
impact the availability of mortgage financing. When the
number of investor-owned units exceed 25 percent, condo
boards often review the question of unit leasing and
consider amendments to restrict further rentals.

Q. Three members of our five-member board make decisions
about the financial expenses and projects outside of
officially called board meetings. Are these legitimate
decisions? I was under the impression that all such
decisions should be made at official board meetings. Is this
practice acceptable under the Illinois Condominium Property
Act?

A. All decisions pertaining to financial expenditures and
capital projects should be made by the directors at an open
board meeting. The board may appoint a committee of
directors to make recommendations. No official decisions can
be made concerning expenditures at a private gathering.

Q. Are programs on condo operations ever held in the Loop?
Are major points of these seminars online?

A. Seminars on issues affecting community associations are
given by major community association trade organizations
such as the Community Associations Institute and the
Association of Condominium Townhome and Homeowners
Associations. Both organizations vary the locations of their
programs in the city and suburbs to reach the homeowner
association community in the Chicago area. To my knowledge,
seminar materials are not posted online, but this is a good
suggestion.

Management pros and cons: ACTHA will host a program on the
"Merits of Self-Management vs. Professional Association
Management" on Oct. 27 at the Wicker Park/Bucktown Chicago
Public Library, 1701 N. Milwaukee Ave., from 7 to 8:30 p.m.
For further information, call 312-987-1906.

Publication date: Oct 5, 2008

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Q. I am aware that most people who are in or near
foreclosure do not pay their assessments, leaving other
owners to foot the bill. It has become apparent that banks
or mortgage holders keep putting off foreclosure on these
properties because they become liable for assessments once
they foreclose. The board is then faced with a deficit to be
made up by special assessments.

We need some type of law that protects the associations by
not allowing banks to drag their feet. After they do
foreclose, any lien placed by the association is completely
wiped out by the foreclosure.

A. You have a legitimate concern. Under current law, a first
mortgage lender must pay assessments on the first day of the
month after the foreclosure sale of a unit, or if the lender
receives a title by deed in lieu of foreclosure, or it takes
possession of the unit. (A bank may take possession when the
borrower vacates the property, or the property is in such
disrepair that the bank asks the court for possession.)

The earliest date of one of these events triggers the
assessment obligation for the bank.

To recover some of the delinquency, Section 9(g)(4) permits
an association to collect six months of the assessments that
were due before the sale from either the party who purchased
the unit from the foreclosing lender or the party who outbid
the first mortgage lender at a foreclosure sale.

This law differs from the "super-lien" provision in 15 other
states. Under a super-lien provision, the first mortgage
holder must pay the association six months of assessments at
the time of sale before obtaining formal title to the unit.

The inequity you describe is that unit owners are paying
common expenses to maintain, insure and provide utilities
for the benefit of the delinquent owner, and to protect the
bank's collateral.

Q. An owner in our condo for the last five years has been
involved in a series of domestic disputes. First, she moved
in with a live-in boyfriend and violent incidents followed.
Then she rented the unit to a series of eight different
people over the last year who have caused disturbances.

I would like to know if our condo bylaws permit an owner to
rent to anyone, or more than one person at the same time.

A. Most declarations and bylaws provide that the unit must
be used as a full-time residence and that units cannot be
used for transient occupancies -- less than one year.

This owner has been using the unit as a boarding house. The
key to your association getting control over this situation
is for the board to adopt a rule limiting the number of
occupancies or leases per year. The board must also obtain
written leases for every tenant; it has the right to
terminate the lease if the unit owner or the tenant violates
association rules.

Publication date: Oct 26, 2008

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Q. As it was explained to me, the Illinois Condominium
Property Act states that the president of the board does not
vote on any matter except in tie-breaker situations. I
understand that it is also improper for the president to
vote on a matter if the outcome would benefit him or her
monetarily.

Please clarify these issues.

A. You are referring to a provision in Robert's Rules of
Order. The subject of the president's vote is not in the
Illinois Condominium Property Act. The president of the
association is a board member who should vote.

Robert's Rules of Order is a guide for parliamentary
procedure. A condo association must formally adopt this
guideline in the bylaws or the rules. Robert's Rules note
that limitations on parliamentary rules may arise from state
law if meetings are conducted under its guidelines.

Under Robert's Rules, the president only votes to create a
tie or break a tie. But limiting the voting power of the
president is not consistent with the board election. Unit
owners elect all directors to exercise their judgment and
vote on association matters.

The solution for your association is to adopt Robert's Rules
for meetings with the exception of this restriction for the
president.

Based upon the Illinois Not-for-Profit Corporation Act, also
applicable to condo associations, a director should not vote
on a matter in which the board member has a direct or
indirect interest. A director should disclose any
relationship to a party that will benefit from an
association contract.

Q. Our condo association consists of 11 units. Two of the
units are rented by their owners and the tenants have been a
problem. One tenant was arrested for selling drugs from the
unit and arrested in front of our building. The owner is not
cooperative, chronically late in her assessments, and does
not seem to care about the quality of her tenants.

Last month, the association voted to impose a minimum
12-month lease for all renters in hopes of dealing with this
owner, but we are not optimistic. What can we do to bring
back normalcy?

A. Changing your declaration to impose minimum lease terms
is a first step. Under Section 18(n) of the Illinois
Condominium Property Act, the board may terminate a lease
when either the owner or the tenant violates association
rules. Misconduct by a tenant is grounds to terminate. The
board also should initiate an eviction proceeding against
the owner for non-payment of assessments.

Q. I live in a garden unit in a condo on the North Side. My
unit has flooded twice this year. The water is coming from a
crack in the foundation, but the board is not doing anything
to stop this problem. The board also refuses to pay for the
cleaning of my furnishings damaged by the flood.

If the board's first duty is to maintain the building, how
can I make them repair the foundation outside of my unit?

A. The board has an obligation to maintain the common
elements. All areas outside the unit's boundaries, including
the foundation, are part of the common elements. The board
must take steps to prevent water infiltration from the
common elements into the units.

The board is not responsible for paying for the cost of
cleaning your rugs. Owners are responsible for damage to
their personal property even if the cause of the damage came
from outside the unit.

Q. I serve on the board of directors of a suburban
homeowners' association. Our board makes decisions
concerning expenses and other related matters via e-mail and
takes a formal vote as well. Is this legal? Do all decisions
have to be made at a formal meeting with homeowners present?

A. Except for very limited circumstances, decisions of a
board should be made at an open meeting and not by e-mail.
As the name implies, the purpose of the open meetings
provisions in both the Condominium Act and the Not-for-
Profit Corporation Act, applicable to homeowner
associations, is for directors to conduct their business at
an open forum meeting. Although these statutes permit
directors to make decisions by unanimous written consent,
this format should be done infrequently. The intent of both
the Condominium and Corporation Acts acts is to permit
owners to personally observe directors making decisions for
their communities.

Publication date: Nov 2, 2008

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Q. I bought into a condo conversion building last October
and have encountered numerous problems with the developer.
Only seven out of 32 units have been sold, so the developer
still has control of the association. He is not looking out
for the best interests of the homeowners.

We did not have gas for a month because he did not pay the
gas bill. He now owes $3,500 to the gas company.

There were misrepresentations during the sales process
regarding a new electrical system, plumbing lines and a new
roof. We were also told that common areas and the elevators
would be updated by last spring. The developer claims these
false promises were made by his real estate agent. The agent
says that he repeated what the developer told him.

A portion of our roof blew out, causing major water damage
to my unit. The developer still has not repaired my unit
because he has not received funds from his insurance
company.

Also, the developer did not obtain occupancy permits, and
has not paid assessments on the units he still owns.

We have tried every possible remedy from local officials to
an attorney who seemed to want too much money to take our
case. Where do we turn?

A. Your unpaid bills relate to the failure of the developer
to pay assessments on the unsold units. The only current
remedy available to the owners is to place a lien on each
developer-owned unit for the amount of unpaid assessments.
You will need an attorney to prepare these documents. When
the owners take control of the board, the association will
have a claim against the developer.

The scope of the development renovation was represented on
the property report. Under the City Condominium Ordinance,
the developer must supply a property report to buyers of
developments of more than six units.

The property report contains an engineering review of the
project and explains the condition of the building. The
report also should state the scope of renovations promised
by the developer. If the developer did not deliver a report
to buyers or violated the representations regarding project
renovation, you should contact the Department of Consumer
Services about this violation.

Regarding the roof, the developer controls the board and
must maintain and repair common elements.

Occupancy of the building without permits is a violation of
building code. The City Building Department should initiate
enforcement proceedings against any developer who permits
occupancy without a certificate.

The best remedy for your fellow owners is to retain an
attorney. While these services will cost money, this is your
most valuable investment.

Publication date: Nov 9, 2008

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  Q: I live in a condominium association where a significant
segment of the unit owners are senior citizens. Many of our
longtime, older unit owners have been passing away. However,
the board of directors, which is filled with younger people,
has decided to no longer post on the common element bulletin
board or newsletters information about older residents who
have passed away, including information about memorial
services. The board still posts notices for retirement of
staff and fundraisers. What is the appropriate way for the
unit owners to approach the board to reverse this policy?

A: Community associations are a form of a mini-democracy.
While it is clear the board of directors has the authority
to control the content of common element bulletin boards and
newsletters, the issue in this case is the board reflecting
the wishes of a large segment of its ownership. In many
older communities, units are being purchased by young people
from unit owners who have passed away or move to assisted
living facilities, slowly changing the demographics of the
community.

The most effective way for the owners to seek redress is to
raise the issues en masse at a board meeting during a unit
owner forum. Also, unit owners may submit a letter/petition
requesting the board post death notices and memorial service
notices on bulletin boards and newsletters signed by a
significant number of unit owners to establish that this
issue is not a single unit owner request.

Ultimately, if the board does not reasonably respond to the
wishes of a large segment of the unit ownership, the unit
owners may always vote for individuals at the upcoming
annual meeting who share their point of views and
philosophies regarding community relations.

Q: I am on the board of a small condominium association, and
an investor purchased a unit at a foreclosure auction who
then stated his intent to rent the unit. However, our
association bylaws prohibit leasing of units. If the
investor-purchaser ignores the bylaws and rents the unit
(which we will not know until a tenant moves into the
building), what can the board do about it?

A: If in fact the association bylaws prohibit any leasing of
units, and a unit owner violates such provision, the board
may evict the tenant pursuant to Section 18(n) of the
Condominium Act and assess all legal fees and costs expended
to do so to the unit owner pursuant to Section 9.2 of the
Condominium Act. Further, the board may levy fines against
the unit owner for the violation pursuant to Section 18.4(l)
of the Condominium Act after notice to the unit owner and
providing the unit owner an opportunity to be heard.

Q: I live in a midsize townhouse community association. I
recently learned the board approved a motion granting the
board president the right to spend up to $5,000 of
association funds on repairs without approval of the entire
board. Is this legal?

A: A board of directors may approve a motion delegating
authority to a single board member to make decisions on
behalf of the association. Whether doing so is a good idea
depends on the parties and issues involved, and the
parameters upon which the board sets on the delegation of
authority.

For small-dollar contracts, such a delegation of authority
might streamline efficiencies, especially in a self-managed
association. However, such delegation of authority for large
capital projects would not be a best practice to authorize a
single individual to negotiate and approve contracts without
board input and approval.

Illustration Caption: Photo: Unit owners can submit a
petition requesting the condominium association's board post
death notices and memorial service notices on bulletin
boards and in newsletters. TETRA IMAGES

Publication date: Sep 6, 2015

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  Q: I live in a condominium association, and recently four
out of our five board directors were removed from the board
by a vote of the unit owners. One of the ousted board
members was the secretary, who kept files on infractions and
correspondences/documents relating to every unit. However,
when those records were turned over to the replacement
board, the file on each of the units relating to removed
directors was mysteriously empty compared to every other
unit having some correspondences. What legal options does
the new board have to recover the missing records?

A: If the management company cannot recover the unit file
records, the association's legal counsel should issue a
demand to the former secretary to turn over all association
records in his or her possession. All association records in
possession of a former board member must be turned over to
the board.

While the association could file a declaratory lawsuit to
force the return of association records that were not turned
over, such litigation would be costly and questionable if
the only records ultimately recovered are old
correspondences and abated infractions. Practically
speaking, the board may be best served to look forward and
shift the record-keeping responsibility to the management
company instead of individual board members to avoid this
scenario from occurring in the future.

Q: After some 20-plus years, our condominium board has
chosen to change the association's cable service provider.
The new provider is requiring the installation of its wiring
system because the existing wiring for the previous cable
service provider cannot be used. Can we be forced to have
our cable wiring swapped and, if so, can the association
still charge us for cable service that we would not be
receiving?

A: It is within the authority of the board to execute a
contract for a change in the cable service provider. As
such, it is common for a new service provider to have to
rewire a building, especially if the wiring is outdated and
does not meet with technological standards.

The board can have the building rewired throughout the
common elements and limited common elements. If unit owners
were to refuse to allow such wiring to be connected to their
unit TVs, they should be aware that under Section 18.4(o) of
the Condominium Act, the association can still allocate bulk
cable service fees on a per-unit basis. Unit owners are
responsible for cable charges whether or not they accept the
new service.

Q: Many years ago, our condominium association amended our
declaration to prohibit the leasing of units except to
direct relatives of a unit owner. We have recently become
aware that our leasing amendment does not comply with
Federal Housing Authority regulations to allow our building
to be FHA approved because of our leasing restrictions. How
can we correct his?

A: Occasionally, original condominium declaration provisions
relating to the sale or leasing of units, or amendments to
such provisions, do not comply with current FHA guidelines
to allow a building to be FHA approved. In the event that
association does want to procure FHA approval for its
building to allow borrowers to obtain favorable FHA
financing terms, the condominium declaration must be amended
to meet FHA guidelines.

Unit owners must approve any amendment to the declaration
consistent with their declaration provisions, which pursuant
to Section 27 of the Condominium Act, must be no less than
two-thirds unit owner approval and no more than 75 percent
unit owner approval. Commonly, declarations require
mortgagee approval to amend leasing provisions.

Examples of provisions that do not meet FHA guidelines are
outright prohibitions on leasing, leasing restrictions that
require character or financial references of prospective
lessees or buyers be delivered to the board, and
restrictions that would prohibit a foreclosing lender from
leasing a unit.

Publication date: Oct 4, 2015

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  Q: I live in a town home community association where the
majority of the owners have kids that play outside on
landscaped common areas, including my own. A few board
members who no longer have young children are proposing to
revise the association rules to restrict kids from playing
in landscaped common areas and stating that any violations
of the rules will result in a fine. Can the board adopt such
rules?

A: The board of directors of a community association has the
right to adopt reasonable rules and regulations governing
its common areas, and violations of such adopted rules will
subject owners to fines. It is not uncommon for rules to
prohibit loitering or playing in the common areas.

However, all boards must balance the needs/desires of its
owners, and rules restricting playing in landscaped common
areas in a community with many young children seems not only
imprudent but, depending on all the facts, also could be
deemed unreasonable in a court of equity.

Q: I live in a community association that has experienced a
series of tumultuous boards for lack of communication with
the owners. About two years ago, the last board of directors
was removed because many owners felt it was not
communicative and was too aggressive with rule enforcement.
Now the new board is falling into the same trap by
announcing that it is officially eliminating the open owner
forum at board meetings. Is this proper?

A: In a community association, pursuant to Section 1?40 of
the Common Interest Community Association Act, boards must
reserve a portion of a board meeting for comments by owners.
However, the duration and timing of the comment period is
within the sole discretion of the board.

By contrast, condominium association boards are not required
to reserve a portion of a board meeting for unit owner
comment. However, for condominium associations, it is
customary to allow a brief owner forum either before or
after the board meeting.

Q: I live in a small condominium building, and each unit has
a chimney with a gas-starting fireplace. The last time we
had our chimney swept, we used a new contractor, and that
contractor told us that our chimney is in violation of city
code because there are screws penetrating our chimney flue
at certain points. Are we bound to disclose this alleged
code violation to potential buyers, even though the chimney
is a limited common element?

A: Disclosures regarding the sale of condominium units fall
into two categories.

The first category of disclosures is from the condominium
association pursuant to section 22.1 of the Condominium Act.
These disclosures relate, in sum, to the administration of
the association and common elements, including disclosures
regarding capital expenditures, liens, litigation and
reserve funds.

The second category is from the unit owner, who is required
to fill out a residential real property disclosure report
relating to disclosures specifically pertaining to the unit.
One of those disclosures requires disclosure about whether
the seller is aware of any material defects in the roof,
ceilings or chimney.

Thus, any alleged chimney code violation should first be
verified, and if one does exist, it must be disclosed to
potential buyers.

Publication date: Oct 25, 2015

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  Q: Recently an exhaust fan in a bathroom of a unit in my
condominium association caught fire and caused damage to
portions of the building, including other units and the
common elements. It appears the unit owner attempted to use
a fire extinguisher to put the fire out and left the unit
without calling the fire department.

The fire continued to smolder and spread. Is the unit owner
responsible to pay for damage to the common elements and
other units? And should the association submit a claim to
its insurance carrier or is this a unit owner insurance
claim?

A: Pursuant to Section 12 of the Condominium Act, even if
unit owners have insurance in their name at the time of a
loss, the association's insurance policy is the primary
insurance and thus, the claim should be submitted to the
association's policy. However, if there is coverage under
the association's policy, pursuant to Section 12(c) of the
Condominium Act, the board of directors may assess the full
deductible against the unit owner from where the fire
originated, after notice and an opportunity for a hearing,
even if the deductible is $10,000 or more (which is a common
deductible amount).

To the extent any amounts are not covered by the
association's insurance policy, pursuant to Section 9.1(a)
of the Condominium Act, unit owners are responsible for the
use and operation of their unit and most declarations
contain provisions that in the event of unit owner
negligence that results in damage, the unit owner is
responsible.

Q: I live in a small condominium association with attached
garages. One of the unit owners is self-employed and works
with tar products to sealcoat asphalt pavement. That unit
owner has been storing his trailer attachment that contains
the tar products in the garage, causing odiferous smells,
and it is unsightly to boot. Is this allowed?

A: The answer depends on the language in the governing
condominium declaration regarding how a parking space may be
used. Most condominium declarations allow the parking of
passenger automobiles in parking spaces, and expressly
prohibit commercial vehicles and/or storage of equipment.

Assuming commercial vehicles or storage of equipment are
prohibited, the board may send the violating unit owner a
notice of violation demanding the tar trailer be removed
from the parking space. If the unit owner fails to comply,
the unit owner may be subject to fines after notice and an
opportunity to be heard or be subject to a mandatory
permanent injunction lawsuit by the board to force the unit
owner to remove the trailer.

Q: I live in a condominium where a large group of unit
owners is interested in amending the association's bylaws
with the required unit owner approval. However, the board is
not supportive of such an amendment and refuses to call a
unit owner meeting to propose the amendment to the unit
owners for a vote. Can we, a group of unit owners, present
the amendment to the unit owners for approval without board
cooperation?

A: Assuming the subject amendment to the governing documents
requires unit owner approval at a meeting of unit owners,
pursuant to Section 18(b)(5) of the Condominium Act, a
special meeting of the unit owners can be called by the
president, the board, or by 20 percent of the unit owners.

Thus, 20 percent of the unit owners can sign a petition that
contains the date, time and place for a unit owner meeting,
which petition/ notice of meeting must be delivered to all
unit owners. At the meeting, pursuant to Section 27 of the
Condominium Act, the group of owners will need to procure
the requisite unit owner approval to amend the governing
documents, which can be no less than two-thirds and no more
than three-quarters of the votes of the unit owner (by unit
percentage), depending on the language of the governing
documents.

It should be noted that some declarations and bylaws may be
amended with merely the written consent of unit owners. If a
unit owner meeting is not required, the group of owners
could solicit requisite written consent of unit owners for a
proposed amendment to the bylaws without calling a meeting.

Publication date: Nov 15, 2015

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  This is the final installment highlighting several legal
cases of interest to community associations, including
unpublished cases.

* For a condominium association in a mixed-use property
where another property owner demands an estoppel certificate
from the association, the association may list on the
estoppel certificate claims for unpaid charges it believes
are valid.

The Illinois Appellate Court, in Excelsior Garage Parking v.
1250 North Dearborn Condominium Association, held that a
condominium association in a mixed-use project with a
declaration of covenants, conditions and restrictions
governing the relationship between the association and a
separately owned garage property may include alleged amounts
owed to the association against a garage property owner who
requested an estoppel certificate.

The court held that the association was free to include
within the estoppel certificate amounts it believed it was
owed for (among other things) maintenance, repairs and fire
suppression system reimbursements. The court also held that
the estoppel certificate was the appropriate means of
preserving claims against the garage property owner for
reimbursements.

* The buyer of a condominium unit at a foreclosure sale that
the condominium board had leased to recoup unpaid common
expenses before the sale must make payments for an ongoing
special assessment debt the first day of the month post-sale
or else risk becoming responsible for paying all previously
unpaid portions of a unit's share of the special
assessments.

In the unpublished opinion of Board of Managers of Cornell
Columbian Association v. Smith, the purchaser of a
condominium unit at a foreclosure sale alleged he was not
responsible for paying off the unpaid common expenses of the
previous foreclosed owner by virtue of the fact that the
condominium board had obtained possession of the unit before
the foreclosure sale and leased it to recoup unpaid
assessments. The buyer asserted that this reasoning applied
not only to unpaid regular assessments but also to the
unpaid share of special assessments on a going-forward
monthly basis.

The Illinois Appellate Court held that while the purchaser
was correct insofar as the regular assessments were
concerned (i.e. that the board's leasing activity meant that
the purchaser had no obligation to pay any of these
assessments before acquiring title), the fact that the unit
had been leased did not absolve the purchaser from paying
the special assessments monthly post-sale, and purchaser's
failure to do so meant that such lien against the unit was
not extinguished.

Accordingly, the buyer was responsible for paying the
entirety of the unpaid portion of special assessments (i.e.
those that were unpaid before buyer took title to the unit).

Note: An "unpublished opinion" means it may not be used as
binding authority to which the Illinois courts must adhere,
but rather it may be reviewed for instructive purposes for
insight into how an Illinois judge may possibly rule in a
similar situation.

* A condominium association may be liable to an individual
for injuries caused by a dangerous condition on its property
if it has constructive knowledge of such condition.

In the unpublished opinion of Scepley v. The Condominiums of
Logan Square, the Illinois Appellate Court held that a
condominium association may be held liable for a dangerous
condition on its property to which it has constructive
knowledge (a hole in the ground that caused a personal
injury of a parcel delivery worker in this case).
Condominium associations have a duty to maintain common
elements safely.

Note: Actual knowledge is actually knowing something,
whereas constructive knowledge is knowledge that a person
could reasonably be expected to know (but does not have
actual knowledge).

Publication date: Jan 24, 2016

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  Q. I am on the board of a condominium association, and our
community has an ongoing issue with dogs, specifically, unit
owners not picking up dog feces from the common elements and
letting their dogs play unleashed on the common elements. We
as a board have been trying to control this issue without
any luck. Our governing documents allow two dogs per unit.
What can we do to abate this issue for the health and safety
of our children?

A. The first step for a board to address pet issues is to
ensure there are adequate and clear pet rules. If they're
inadequate to address the ongoing violations that are
occurring in a community, the board should adopt appropriate
and comprehensive rules and regulations relating to pets.

Thereafter, as with any violation of a governing document of
an association, pursuant to Section 18.4(l) of the
Condominium Act, the board may levy reasonable fines against
a unit after notice and an opportunity to be heard for
violation of the declaration, bylaws or rules and
regulations. Repeated violations warrant significant fines.
Many declarations also allow the board to remove a pet that
is a nuisance on a few days' notice.

A draconian -- and generally not feasible -- step to address
endless pet issues is to amend the declaration to prohibit
dogs if there is sufficient unit owner approval to do so.
However, it should be noted that even if such an amendment
is adopted, any dogs residing in units at the time of the
adoption of such an amendment would be grandfathered for
their remaining life, which invariably might not change the
conduct of problematic dog owners.

Q. I am a unit owner in a condominium that is holding its
annual elections shortly. On the proxy form distributed to
unit owners, it states there are only four positions
available and lists five candidates; however, the proxy also
states that unit owners cannot direct their proxy holder to
vote for more than one vote per candidate, up to a total of
four votes, because there are only four available positions.
Other condominium associations allow aggregate voting (i.e.,
cumulative voting). Our bylaws are silent on this issue. Why
the difference?

A. The proxy described above contemplates noncumulative
voting, which means that a unit owner may not cast more than
one vote per candidate up to the maximum number of available
positions. Cumulative voting means that unit owners may
stack their votes to give a single candidate more than one
vote, up to the maximum number of available positions.

Cumulative voting is only allowed when stated in the
association's bylaws. If the bylaws are silent on the issue,
noncumulative voting is the voting standard for that
association. If a community desires to change its voting
standard to cumulative voting, that requires an amendment to
the bylaws approved by the unit owners as set forth in the
declaration and bylaws.

Q. Our condominium association recently held a special
election called by 20 percent of the unit owners to replace
a board member who resigned midterm. The board set a meet-
the-candidates forum for the two candidates running for the
position. Unit owners asked questions of both candidates,
but the property manager peppered only one of the two
candidates with a litany of questions. Did the property
manager step over a line by asking questions to a single
candidate?

A. It is not improper or prohibited for a property manager
to participate in a meet-the-candidates forum as a precursor
to a condominium election; however, it is not a best
practice for a property manager to become involved with
election politics in any manner, especially by giving the
appearance of choosing a preference for a particular
candidate.

Directing questions only to a single candidate rather than
asking generic questions to be asked of all candidates could
be construed as "getting too close to the fire." Management
personnel are best served to remain neutral in association
elections and merely ensure a proper and transparent
election process.

Publication date: Jan 31, 2016

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Q. Our condo association is self-managed. Participation in
building upkeep and management has been primarily left to a
few owners, and burnout is common.

The board is seriously considering and nearly through a
review process to select a management company. Certain
members of our community are not in favor of professional
management, but will consider going along with the idea,
provided that the management company fee is divided by 18
unit owners equally.

If the cost of the management company is part of the budget,
does the effective cost of the management firm have to be
divided on the basis of percentage of ownership, or can the
management company fee be divided equally among all the
units?

A. The management fee is a common expense. Owners must pay
common expenses on the basis of their percentage of
ownership.

The reluctant members of your association must read the
declaration and bylaws that binds them as unit owners. The
alternative for the association is an amendment to the
declaration to revise the percentages of ownership. Under
Section 4(e) of the Illinois Condominium Property Act,
changes to ownership percentages must be unanimous, which is
generally difficult to achieve.

The alternative is for your neighbors to assume the
responsibility of management. I assume that they are too
busy to serve in that capacity.

Q. I am in a 24-unit condo in the southwest suburbs. The
board of directors refuses to maintain the common elements.
There is not only outside work to be done, but several
indoor projects that are in dire need of attention.

Most of the owners are apathetic. The few who do speak up
are opposed to spending any money.

The board will not adhere to the bylaws or the Condominium
Act regarding their obligation to maintain the common
elements. A handful of us believe that the building needs
immediate attention. What are our options when the board
will not follow the law?

A. Your primary option is to elect another group of
directors who will commit to meeting their fiduciary
obligation to the association. The key fiduciary duty of a
condo board member is to maintain the common elements of the
building.

Owners who oppose spending money to maintain their home will
only hurt themselves by contributing to a decline in the
appearance of the building and the values of their units.
This short-sighted attitude is contrary to the proper
operation of an association. Financial planning for a condo
building includes both regular maintenance and long-term
repair and replacement of the major portions of the common
elements.

Q. Our condo board, with the support of our professional
management company, recently voted themselves compensation
in the form of credits to their monthly assessments.

Our bylaws clearly state that the board shall not receive
compensation unless approved by a two-thirds vote of the
unit owners. This vote was never taken. What is our
recourse?

A. Section 18(a)(3) of the Condominium Act states that the
bylaws of the association will determine the compensation,
if any, for members of the board. It is not unusual to find
bylaws that require a vote of the ownership to approve
compensation for directors. The two-thirds voting
requirement of the membership in your document is fairly
typical. If the vote was not taken, the directors may not
receive compensation.

But even if properly approved, the compensation cannot be
done in the form of an assessment credit. Under Section
18.4(o) of the Condominium Act, the board cannot exempt any
owner from assessment payments, including themselves.

Publication date: Dec 21, 2008

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  Q. I am the president of a self-managed homeowners
association. Our owners pay their regular assessments by
check, which necessitates a board member spending time
collecting the assessments from the mail, manually posting
the amounts on ledgers and driving to the bank to deposit
the checks. The board is thinking about requiring residents
to use a direct debit service to pay their assessments to
reduce administration time and assessing a processing fee
for those owners who refuse to sign up. Can the board adopt
such an "inconvenience fee" of sorts?

A. For self-managed community associations, an optional
direct debit system for homeowners to pay their assessments
is more efficient in terms of paperwork processing time
spent by board members. However, there is no basis in the
law to mandate homeowners be required to pay their
assessments by direct debit as the only method for payment.
Further, there is no basis in the law to assess homeowners a
processing fee for delivering assessment payments other than
direct debit.

To reduce the time spent by board members processing
payments, there are common alternatives such as accounting-
only services from professional management companies and/or
services provided by many financial institutions for the
collection of assessments for community associations through
a lock box system. Both of those alternatives incur a cost,
which would be a common expense and part of the budget, but
administration time spent by board members would be
drastically reduced.

Q. I live in a small condominium association, and our board
president has done a remarkable job. He is great with unit
owners, vendors and our insurance agent. He receives
compensation in the amount of $2,000 per year, which many of
us feel is a steal, but we are wondering whether such
compensation is market. Please give me your thoughts.

A. Almost all board members in a community association serve
without receiving compensation. In fact, the legal standard
is that board members serve without compensation unless the
condominium bylaws expressly allow for compensation. If the
bylaws do not provide that the board president may be
compensated, an amendment to the bylaws is required, which
would require unit owner approval.

Therefore, there is no dollar figure that is "market" for
condominium board presidents to earn in terms of
compensation. For those associations that do compensate
board members, it is fact-specific and a decision for the
community.

Q. I live in a large condominium association and was elected
to the board. The current president has been serving as
president continuously for many years. How can other board
members serve as president?

A. Unit owners elect board directors to serve on their
community association board, usually for a period of two
years (some have one-year terms). By contrast, only the
directors elect officers, usually for a term of one year.

Officers are elected by the board members after each annual
meeting. Thus, a majority of the board chooses who will
serve in the capacity of president, secretary and treasurer.
Similarly, board members themselves may remove an officer
from an officer position by a board vote at any regular
board meeting.

Publication date: Feb 7, 2016

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  Q: I am the treasurer of our condominium association and
am questioning the validity of our recently adopted budget.
Our budget increased by over 115 percent of the previous
year's assessments, and it is my understanding the
Condominium Act requires the unit owners to approve a budget
with such an increase. However, only the board approved our
budget. Is our budget valid?

A: Pursuant to Section 18(a)(8) of the Condominium Act, the
board of directors of condominiums adopts annual budgets
without unit owner approval. However, if an annual budget
adopted by the board exceeds 115 percent of the previous
year's regular and special assessments, then the unit owners
may institute a series of procedures to reject the budget.
If the unit owners fail to strictly follow the procedures
set forth in the Condominium Act to reject a budget, then
the budget is valid.

To reject an annual budget that exceeds 115 percent of the
previous year's regular and special assessments, at least 20
percent of the unit owners must submit a petition within 14
days from the adoption of the budget. Then the board must
call a unit owner meeting within 30 days, and at that
meeting a majority of the unit owners must reject the
budget. If a majority of the unit owners do not vote in
favor of rejecting the budget, the budget is deemed
ratified.

Q: I am on the board of a small, six-unit condominium
association. We are self-managed and do the best we can,
considering three of the unit owners do not participate in
any association administration. Does the Condominium Act
have an exemption for small associations such as ours so we
are not required to follow so many formalities?

A: The Condominium Act applies to all condominium
associations in the state of Illinois regardless of their
size. Some condominium statutes of other states, like
Wisconsin for example, have exemptions for small
associations.

For Condo Adviser readers who live in a common interest
community association (not a condominium association), there
is an exemption for small associations. Under the Common
Interest Community Association Act, if a community
association has less than 10 units or an annual budget of
$100,000 or less, CICAA will not apply unless the board or
owners affirmatively vote to be covered by CICAA.

Q: I live in a high-rise condominium with over 200 units,
and approximately 25 percent of the units are owned by
investor-owners who rent their units. The number of
investor-owned units has increased recently. Is it possible
that the investors could coordinate a hostile take over of
our association and force all unit owners to sell at low
prices for their benefit?

A: Section 15 of the Condominium Act allows 75 percent of
the unit owners in a condominium association of four or more
units to approve the sale of all units and the common
elements in a building to a bona fide third-party purchaser,
even over the objections of the remaining 25 percent. If
there is a disagreement as to the value of units for the
unit owners who did not vote in favor of the sale, those
unit owners have the right to require arbitration regarding
their purchase price.

In an association where only 25 percent of the unit owners
are investor-owned, such a percentage of unit owners would
not have any authority to force the sale of the property to
a third party purchaser. Of course, if approximately 50
percent of the remaining unit owners also support such a
sale, the aggregate unit owners may be able to force a sale
of the property.

Publication date: Feb 14, 2016

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  On June 22, the Chicago City Council adopted an ordinance
that regulates popular home-sharing and vacation-rental
services such as Airbnb, VRBO and HomeAway, and bolsters
protections for condominiums and homeowner associations.

The ordinance requires these companies to be licensed either
as a short-term rental intermediary (like Airbnb) or
advertising platform (like VRBO and HomeAway). It also
requires individuals who wish to list their town homes or
condominium units as short-term rentals to register (for
Airbnb) or obtain a license (for VRBO and HomeAway) with the
city. This will better allow Chicago to track units made
available for lodging, respond to complaints and penalize
those who break the rules.

The ordinance sets a great number of protections to address
the quality-of-life issues that routinely affect those
living in community associations where short-term rentals
are popular.

These protections include designating how many units within
a building may be rented for a short term, as well as
requiring those who live in community associations to attest
when registering or obtaining a license that their
association's bylaws don't prohibit vacation or transient
rentals. In buildings with more than five units, only a
quarter of the total number of units, at a maximum of six,
may be rented at any given time.

Most important, the city will maintain lists of units that
are barred from short-term renting for various reasons, as
well as a list of buildings that, at the discretion of
association boards, are subject to blanket prohibition on
short-term rental activity. Enforcement will be the city's
responsibility.

If a community association's governing documents contain a
ban on short-term or transient rentals or both, the board of
directors could consider registering as a prohibited
building.

Platforms such as Airbnb and VRBO will be required to
consult those lists and remove any listings to maintain
their right to operate in the city. Those selling or
legitimately leasing their units within buildings that
appear on the blanket-prohibition list must disclose that
status to the buyer or tenant and receive a written receipt
of acknowledgment.

The ordinance also imposes annual and per-listing fees on
the Airbnb and VRBO services, as well as adding a 4 percent
surcharge to all bookings, with the proceeds going to
enforcement and administration as well as support services
for the homeless.

Finally, the city of Chicago has mandated that sites such as
Airbnb establish a 24-hour hotline that can be reached by
dialing the city's 311 nonemergency line to report any
violations or quality-of-life issues that may be related to
short-term rental.

With the passage of this ordinance, Chicago becomes the
first city in the U.S. to establish a requirement for
uniformed operations between vacation rental platforms and
for the removal of listings from a company's platform for
violation of a city's ordinance.

Publication date: Jul 10, 2016

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Q: I am a current board member in a six-unit, self-managed
condominium association. The previous board refused to
initiate collection proceedings against a unit owner who was
not paying assessments, but when the subsequent board was
elected, we immediately initiated such proceedings.

Nonetheless, just before the association was able to
commence the eviction -- after obtaining a court judgment
against the non paying unit owner -- another board election
occurred. Past board members got re-elected to a majority of
the board and immediately ceased the eviction proceeding
with no plan for collecting the now-$15,000 debt.

Do the unit owners have any recourse to force the board to
continue legal proceedings against a unit owner with a large
assessment delinquency in a small association?

A: Maintaining, repairing and replacing the common elements
-- and collecting assessment income to do so -- are among
the most basic purposes of a condominium board of directors.
In fact, section 18(o) of the Illinois Condominium Property
Act prohibits a condominium board from forbearing a unit
owner's assessments. In other words, the board may not waive
a unit owner's obligation to pay assessments.

Pursuing legal action for nonpayment of assessments is only
a right of the condominium board, not individual unit owners
in the condominium association. However, to the extent the
board refuses to pursue collection of delinquent assessments
from a unit owner, the board would be in breach of its
fiduciary duties. Any unit owner may file a declaratory
lawsuit against the board for breach of fiduciary duty to
force the board to act.

Q: I am a contract purchaser of a condominium in a small
four-unit association. As part of my due diligence, I have
learned that the association has neither maintained board
meeting minutes for the last 20 years nor kept detailed
financial records. My search of county records revealed no
recorded liens against the unit I am considering purchasing.
Thoughts?

A: Section 22.1 of the Condominium Property Act allows
prospective purchasers to request copies of certain
documents and obtain certain disclosures from the
association. Among those documents are board meeting minutes
for the last seven years, certain financial disclosures and
a disclosure of anticipated capital expenditures for the
current year and following two years.

Without board meeting minutes or detailed financial
documents, there is no way to verify what the board says, to
the extent the board even addressed such topics. It is up to
a prospective purchaser whether to buy a unit in an
association that does not comply with some of the basic
requirements mandated by Illinois law and the governing
documents. The maxim at play here is "caveat emptor" --
buyer beware.

Q: I am on a condominium board that has decided to amend our
house rules to authorize electronic delivery of notices
pursuant to the recently amended section 18.4 (s) of the
Condominium Property Act. However, there is disagreement
among the board as to whether the board can merely amend its
rules to impose electronic delivery of notice on the unit
owners -- even those without email access -- or if we must
obtain unit owners' consent by having them fill out an opt-
in form for electronic delivery. Please advise.

A: Section 18.4 (s) of the Condominium Property Act allows a
condominium board to adopt rules and regulations authorizing
electronic delivery of notices and other communications
required or contemplated by the act. However, 18.4 (s)
expressly states that the board may do so provided each unit
owner gives the association written authorization for
electronic delivery and an electronic address to receive
such communications.

Therefore, while the board may adopt rules and regulations
to allow for electronic communications, it must obtain unit
owners' consent and electronic addresses. If a unit owner
refuses to do so, the board must still deliver paper notices
as required by the governing documents and the Condominium
Property Act.

Publication date: Mar 12, 2017

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Q: I own a unit on the first floor of a small condominium
building. At my expense, I replaced my kitchen window;
however, when it rains, I still see water dripping into the
window frame. The window installation company inspected the
window, stated the installation was correct and said
deteriorated tuckpointing near the window is to blame. The
association board refuses to take any action, claiming the
water infiltration issue is my problem because I replaced
the window. Thoughts?

A: Section 18.4(a) of the Illinois Condominium Property Act
says a board of directors is responsible for maintaining,
repairing and replacing the common elements. If the common
element tuckpointing -- and/or waterproof membrane
underneath the masonry -- is insufficient or deteriorated
and allowing water into the building cavity, the board must
repair the water infiltration as a common expense.

The board's failure to maintain, repair and replace the
common elements is a breach of its fiduciary duties. If the
board continues to refuse to maintain the common elements to
stop the water infiltration into the building cavity (and
thus, your windows), a unit owner has the right to file a
lawsuit for breach of fiduciary duty, or more practically,
may seek board approval for the owner to take corrective
action to stop the water infiltration. After the repair, the
unit owner can decide whether to pursue reimbursement.

Q: I am a board member of a condominium association, and
there is a unit owner who routinely harasses the board with
endless questions and demands for documents. The most recent
demand was for all financial records and statements of the
association for the last 10 years, which equates to
thousands of pages. The requester's alleged "proper purpose"
as required by the Condominium Property Act is to determine
if there is financial mismanagement by the board. What is
considered a proper response?

A: Section 19(a) of the Condominium Act states that unit
owners are entitled to inspect and obtain copies of books
and records of account for the current and 10 preceding
fiscal years. According to Section 19(e), the unit owner
must state a proper purpose and the records must be produced
within 30 business days.

The association may charge the unit owner the cost of
retrieving and making those records available for inspection
as well as the cost for the copies.

A proper purpose under Illinois case law cannot be for
purposes of harassment and retaliation. A statement alleging
financial mismanagement may not be sufficient depending on
the facts and circumstances of the request, and the past
conduct of the unit owner toward the board.

Q: I'm on the board of a self-managed condominium
association, and the association needs access to a penthouse
unit to investigate and repair water infiltration coming
from the roof. However, the unit owner won't allow access
unless the board provides a copy of the contract with the
association's architect and answers other questions. Can an
owner condition access upon delivery of a contract and
information?

A: Legally speaking, a unit owner cannot condition the
board's access when emergency repairs are necessary to
prevent damage to common elements. Section 18.4(j) of the
Condominium Act gives the board such authority to access a
unit.

However, as a practical matter, seeking court intervention
would cause a significant delay in investigating and making
such repairs, even though the board would be able to recover
its legal fees according to Section 9.2 of the Condominium
Act.

The practical solution is to give the owner reasonable
information to solicit cooperation. Unit owners are entitled
to inspect copies of contracts to which the association is a
party upon stating a proper purpose, according to Section
19.

Publication date: Jun 11, 2017

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Q: I am a unit owner in a condominium association, and the
common elements of my association are in dire need of
significant repairs and replacements -- to the tune of
millions of dollars. If the condominium board adopts a
special assessment to pay for the amount of necessary
repairs and replacements, it could equal half or more of the
value of my unit.

How can the unit owners force a sale of all the units and
common elements in the building to a developer who will buy
the building to "deconvert" the condominium association?

A: For a situation as described above or for purely
opportunistic reasons, Section 15 of the Illinois
Condominium Property Act provides for the sale of all units
and the common elements in a condominium building to a third
party. Section 15 requires 75 percent of the total unit
ownership (not just 75 percent of unit owners who show up to
vote), calculated by unit percentage, to approve the sale at
a properly called unit owner meeting. If the requisite unit
owners vote in favor of a sale, the association can force
the sale to occur even over the objections of those unit
owners who voted against the sale.

To protect those unit owners who opposed the sale -- at
least in terms of the offered purchase price for their unit
-- Section 15 also contains a mandatory arbitration process
regarding the appraised value of the unit if such unit
owners believe the offering price for their unit is below
market value.

It should also be noted that there is legislation currently
proposed in the Illinois legislature that would increase the
requisite percentage threshold from 75 to 85 percent for a
sale of all unit and common elements in a condominium;
however, this proposal still is being debated and not yet
the law.

Q: I live in a residential cooperative and understand the
statute that governs cooperatives is the Illinois Business
Corporation Act. However, if the Business Corporation Act
and the other governing documents of the residential
cooperative do not address a particular topic, does the
Condominium Act apply in any way?

A: Residential cooperatives are a fundamentally different
form of ownership than a condominium association, with
different laws and statutes applying. Whereas unit owners
own their condo units, in a residential cooperative,
shareholders own shares in a corporation and the corporation
owns the building. The shareholder leases an apartment from
the corporation pursuant to a proprietary lease.

Residential cooperatives are governed by their articles of
incorporation, the Illinois Business Corporation Act and the
proprietary lease. To the extent neither a co-op's governing
documents nor the Business Corporation Act apply to a
particular topic, the Condominium Act will not apply to the
cooperative in any way.

Q: I am the property manager of a condominium association
and frequently receive lender questionnaires regarding unit
resales that ask a litany of questions well beyond the
disclosures that are required under Section 22.1 of the
Condominium Act. Is the association required to answer all
lender questions?

A: As you correctly state, Section 22.1 requires certain
disclosures to a seller of a unit for the benefit of a
prospective purchaser. The disclosures required per Section
22.1 of the Condominium Act are the extent of what the
association is legally required to provide.

However, condominium associations (and thus, managing
agents) are wise to balance the minimum 22.1 disclosures
with answering customary questions asked by lenders as a
prerequisite to proceed with a loan. If an association
refuses to answer such customary lender questions, lenders
would not approve loans for prospective purchasers, which
would lead to purchasers being unable to purchase a unit. As
unit owners found that prospective purchasers could not buy
their units because they could not get a loan, prices would
invariably drop.

Publication date: Jul 9, 2017

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Q: I am a board member of a self-managed condominium
association. What is the proper process to establish a
committee or commission and what is the difference between
the two?

A: A resolution of the board is required to create a
committee or commission. A common misconception is that
board president alone has the authority to create a
committee or commission.

In terms of the difference between a committee or a
commission, on a basic level, a committee is composed of
either all board members or a mix of board members and non
members. Committees can also be delegated the authority to
make decisions on behalf of the board.

In contrast, a commission may be composed of only non-board
members. Further, commissions cannot be delegated the
authority to make decisions, but merely make recommendations
to the board and act in a purely advisory role.

Whether a committee or a commission, a non-board member may
chair the committee or commission, and to be most efficient,
the board should define the purpose of the committee or the
commission to avoid confusion.

Q: The trend of condominium deconversions is occurring
throughout Chicago. I own multiple units in a building that
is exploring that process. At this point we are without a
written purchase offer, but we have interest from multiple
developers. Are unit owners required to grant access to
their units if requested by the board for purposes of
selling the building?

A: The sale of all units and common elements in a
condominium property for the eventual purpose of a condo
deconversion has been a trend for the last few years and
will likely continue in the near term. Section 15 of the
Illinois Condominium Property Act allows at least 75 percent
of the unit ownership to vote in favor of a sale and then
force the remaining owners to sell.

There is no requirement that a unit owner grant the
association access to his or her unit leading up to the sale
of the property. However, if a unit owner does not vote in
favor of the sale and files a timely Section 15 written
objection to the purchase price allocated to his or her unit
because the owner believes the market value of the unit is
higher than what has been offered, the unit owner may
participate in a unit valuation appraisal process. As part
of a Section 15 unit valuation appraisal process, the unit
owner will need to grant the developer's appraiser access as
part of the process.

Q: I live in a condominium and on occasion smell marijuana
smoke in my unit coming from another unit. Given that
medical marijuana is legal in Illinois, and recreational
marijuana use could be legalized at some point in the
future, does the board have enforcement rights to prevent
marijuana smoke from emanating out of units?

A: Since medical marijuana is now legal in the state of
Illinois, marijuana smoke will not have criminal penalties
in Illinois, but just as a condo board could deem cigarette
or pipe smoke emanating from units a noxious and offensive
activity, board members could arrive at the same decision
about marijuana smoke. (Even if recreational marijuana use
is someday legalized in Illinois.) Noxious and offensive
activities are prohibited in condominium declarations and
bylaws. Therefore, the board has the legal right to enforce
the association's governing documents relating to
transmission of smoke between units, regardless of the type
of smoke.

The most common practice to address smoke transmission
between condo units is for the board to adopt rules and
regulations requiring the owner of the unit where the smoke
is emanating from to prevent smoke from transferring into
other units. The rules should outline remedial measures.

Publication date: Jul 8, 2018

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Q. I purchased a condominium three months ago. After three
months of quiet, apparently due to the above tenants being
out of the country, we have started to hear significant
sound transmission coming from the unit above, which has old
parquet flooring without sound insulation. We complained to
management about the noise and the tenants put down area
carpets that muffled some of the sound. But we can still
hear much noise due to heavy walking and a child that runs
throughout the unit. Is there anything in condominium law
that would apply to this noise situation?

A. Sound transmission in condominium buildings from time to
time is an issue, especially depending on the construction
of the building. For example, loft buildings may have sound
transmission issues between units due to the original
construction of the building, but even newer construction
buildings could have sound transmission issues when flooring
in a unit does not contain sound dampening insulation.

As a part of the analysis regarding legal rights and
remedies, the cause of the sound transmission must be
determined. If the noise is being caused by unreasonably
loud people in a unit, condominium declarations and by-laws
contain a provision that prohibits noxious and offensive
activities and grants the condominium association the right
to levy fines and evict a tenant for such a violation of the
association governing documents.

However, if the conduct of the unit occupants is reasonable
and not the underlying cause of the sound transmission, then
the board of directors has no basis to levy fines or evict a
tenant. If the building construction is actually the
culprit, the parties involved should communicate with each
other and discuss remedial measures that can be implemented
to mitigate the sound transmission, which may include
installing sound insulation under the flooring or in the
ceiling of the unit that is sensitive to the sound
transmissions.

Q. I live in a self-managed condominium association and the
garden-level unit owner has reported to the board that water
is entering his unit through the foundation, although no
cracks have been identified in the foundation. What
obligations does the association have to address this issue
if the cause of the water infiltration cannot be easily
determined?

A. Pursuant to Section 18.4(a) of the Condominium Act, the
board of directors has a legal obligation to maintain,
repair and replace the common elements. It is the legal
obligation of the board to ensure the common elements do not
allow water infiltration into a unit, whether the source is
from the roof, exterior walls or the foundation.

The board needs to retain an appropriate consultant to
investigate the foundation, which may include water testing,
to determine the source of the water infiltration. As a
common expense, the board must repair the foundation to
prevent the water infiltration into the unit.

Q. I am the owner of two units in a condominium association
with three units. There are only two directors serving on
the board. As we are preparing our annual report for the
Illinois Secretary of State, the report requires the
reporting of three officer positions: president, secretary
and treasurer. Can one person legally serve in multiple
officer positions?

A. A single director may serve in more than one officer
position. For example, a single board member could be both
the president and the treasurer.

As a practical matter, each unit in a three-unit condominium
is entitled to have one owner serve on the board, assuming a
three-person board. Therefore, with a husband and wife on
title of two units, the wife can serve on the board
representing one of the units and the husband the other,
allowing for three directors. Each person could serve in a
different officer position. Three serving directors is
preferred over two directors because if two directors do not
agree on a particular board decision, a third director could
break the tie.

Publication date: Jan 13, 2019

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Q: I am a unit owner in a condominium association where the
association took possession of my unit due to an eviction
lawsuit for unpaid common expenses. The association had
possession of my unit for two years and leased my unit to
pay down my delinquency. However, when the unit was returned
to me as the rightful titleholder, the unit was trashed with
areas of mold, debris and damage due to the actions of the
association's tenant. The association refuses to repair the
unit. Is the association liable for the damages?

A: Pursuant to the Illinois Code of Civil Procedure, a
condominium association may legally obtain possession of a
condominium unit per an eviction lawsuit for delinquent
common expenses. As a landlord with a possessory interest,
the association may then lease the unit to a tenant to pay
down the assessment delinquency. However, with such a right,
the association has the responsibility to keep the unit in
good order and return it in substantially the same
condition, less reasonable wear and tear.

To the extent the association's tenant caused damage to the
unit, not only is that tenant liable for the damages, but
the association may also be liable because it had legal
possession of the unit. The association may ultimately have
to pursue the tenant for damages per the lease if the
association is held liable for damages.

Q: My homeowner's association replaced the concrete sidewalk
and driveway in front of my home as part of its
responsibility. Since the replacement, I have noticed water
pooling on the concrete instead of draining to a lower
point. During the winter, I have noticed patches of ice. Is
the board required to replace the concrete to address this
hazardous condition?

A: Pooling of water on concrete does not necessarily mean
the concrete was installed defectively. There are applicable
local codes, and construction guidelines, relating to the
installation of concrete. If an engineer opines that the
concrete sidewalk and driveway was installed in violation of
applicable codes or construction guidelines, the association
will be responsible to abate the conditions, which will
likely mean asserting a claim against the contractor who
improperly installed the concrete.

It should be noted that even with properly installed
concrete, Chicago freeze-thaw cycles commonly create ice
patches in winter so a policy of addressing the slippery
condition might be in order.

Publication date: Jan 12, 2020

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Q. I am on the board of a small self-managed condo
association formed five years ago as the result of a
conversion. The developer drafted and recorded the
declaration and bylaws.

In the years since, control of the board has been turned
over to the owners, the directors have adopted a number of
rules and regulations. These rules have been approved by the
owners and published to the members of the association. The
bylaws have not been amended, and we do not have any written
document where the rules have been collected.

The Condominium Act refers to bylaws and "other instruments"
of the association. Are we required to record changes to the
bylaws for rules changes? What constitutes a valid
instrument?

A. Let me clarify: The condo instruments referenced in the
Illinois Condominium Property Act are the declaration and
bylaws. The developer prepares the original document. The
bylaws are generally an exhibit to the declaration. The
declaration describes the property, including the
distinction between units and common elements, easements and
maintenance responsibility. The bylaws explain the
governance structure, including the powers of the board of
directors.

Generally, this document is revised by a vote of the
ownership. The original declaration and bylaws and any
amendments must be recorded with the Recorder of Deeds of
the local county.

The rules and regulations are adopted and revised by the
board of directors. Owners receive a notice of a meeting to
discuss the rules, but the final decision on the text of
these regulations is made by the board by a vote at an open
board meeting. The board does not record the rules.

Your association should have a formal rules document that is
regularly distributed to the unit ownership. Owners are
expected to have copies of both the condo instruments and
the rules. Presumably, owners read this material to
understand their duties and rights. Courts assume that they
do.

Q. Our association would like to add move-in and move-out
fees to cover potential damage and administrative costs for
this process. How is this best handled, by rules and
regulations? Are owner-occupied units and rental units
handled differently? Is there a standard charge?

A. Associations often have moving fees that cover both the
administrative costs of changes to association records and
security for any damage that may occur to common areas
during the physical moving of furniture. These fees should
bear some relationship to the administrative costs in
changing the records of the association and the amount of
potential damage that may arise from the physical move.
Owner-occupied units and rental or investment units must pay
the same fee.

For associations, the fees may range from $250 to $1,500 or
higher. The fee is usually retained by the association until
the parties complete the move. Any portion not used to pay
for damages should be returned to the seller or purchaser.

Q. What can we expect a condo manager to do for the
association? We have information about the duties of board
members, but no criteria for management.

A. The primary function of management is to act as agent for
the board of directors in performing the obligations stated
in the declaration and bylaws. The duties of the management
agent should be clearly stated in a written contract.

The agent's duties will include the collection of
assessments, payments to association vendors, enforcement of
rules and regulations, keeping association records, and
processing insurance claims. The agent is generally
responsible for filing documents required by federal, state
and local government entities.

A carefully worded management contract should state the
specific duties and limitations on the authority of the
agent. The agent does not set policy, but rather, carries
out the decisions of the board.

Condo conference: The Illinois Chapter of the Community
Associations Institute will hold its 27th Annual Conference
and Trade Show Jan. 17 at the Hyatt Regency O'Hare. For more
information, call 847-301-7505 or check the CAI Web site at
cai-illinois.org.

Publication date: Jan 4, 2009

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Should a member of a condominium, co-op or homeowner
association be allowed to operate a home-based day-care
center inside her unit?

The question is being discussed more and more by residents
and association officers as a growing number of owners take
in four or five preschoolers each day for a fee, often
without prior knowledge or consent of the association board
or the residents of adjoining units.

Often those who are eager for such care, usually young
parents, oppose those who find it a noisy, unwelcome
intrusion. There also are serious issues of legal liability
for the association and problems of heavier-than-
anticipated use of such things as playgrounds.

The pros and cons of allowing home-based day-care in
condo/co-op communities has become such a controversial
issue that the Community Associations Institute, a national
network of condominium, co-op and homeowner association
leaders and their advisers in Alexandria, Va., has arranged
a workshop on the subject at its national conference in
Baltimore next Saturday. "It has become the topic of
conversation at many, many meetings," said Gurdon Buck, a
lawyer from Hartford who is an officer of the institute.

Part of the problem, Buck said, stems from the ambiguity of
the language contained in regulations that govern most
associations and corporations. Since most regulations were
drafted before home-based day-care became so widespread,
their wording is not appropriate to it. That has led to a
sudden spurt of suits on the issue.

Three cases have been heard in the Maryland courts and one
in Georgia within the last year. Courts in Texas, Virginia,
Illinois and Michigan have heard similar cases; some have
been decided in favor of the day-care providers, others in
favor of the associations trying to stop their activity.

In almost all instances, the providers insisted they had
every right to care for a reasonable number of preschoolers
in their homes for a fee. The association bylaws, they said,
did not specifically prohibit such activity provided they
had obtained necessary state licenses and were not violating
local zoning codes. Moreover, they maintained, the public
good was being served.

The opponents argued, in many instances successfully, that
home-based day-care was a business. While some professional
business activity is permitted, they said, day-care does not
constitute professional use.

Consider the case of Merion Station Townhouse Association v.
Lewis. Some months ago the officers of the 144-unit
homeowner association in Columbia, Md., sued Lynn Lewis, a
day-care provider, after she refused to stop caring for the
children. They argued that she was running a business, in
violation of the covenants governing her unit. She said that
her day-care activities were not a business and that she was
within her rights as an owner. A lower court has ruled in
favor of the association, but Lewis is appealing.

An earlier case, in Catonsville, Md.-Westerlee Community
Association v. Senanayake-was decided in favor of the
provider, and the ruling suggested she had not violated the
language or intent of the condo rules.

Thomas Schild, a specialist in condominium law with a
practice in Silver Spring, Md., pointed out that New Jersey
and California have passed laws stating that day-care is a
proper use of a home and totally compatible with an area
zoned for residential use only. Maryland, he said, has a
similar bill before its legislature.

As more states pass such bills-a reflection of a widely
acknowledged need for more day-care opportunities-
associations that do not want day-care providers on their
premises may have to list day-care as a specific category
for exclusion if they want any prohibition upheld, Schild
said.

Lawyers are urging the directors of co-op, condominium and
homeowner associations to encourage their members to modify
the by-laws or regulatory documents so that home-based day-
care is specifically addressed, either permitted or
prohibited as the membership sees fit.

Matthew Perlstein, a lawyer in Farmington, Conn., who
specializes in condominiums, said that if the membership
votes to prohibit home-based day- care, steps should be
taken to insure that the prohibition does not infringe on
the rights of unit owners to make normal babysitting
arrangements or on "the chance for children to have their
friends over and use the play areas together."

If the vote is in favor of day-care, Perlstein and others
recommend formulating guidelines to insure that any
operation conforms to state day-care licensing laws.
Maryland, for instance, limits home-based care to a maximum
of six children.

Perlstein also suggests that each provider be required to
apply to the board for a special permit that would allow
each operation to be reviewed individually. Guidelines, he
added, should spell out what recreational equipment may be
used by the provider and the children and what is off-
limits.

Boards should also contact their insurance representatives
to find out what type of additional protection might be
needed. Barbara Wick, an insurance consultant in Northfield,
Ill., who has been studying day-care for the October
workshop, warned that the insurance industry has not really
explored the issue. Thus, she warned, association officers
might encounter conflicting opinions from different agents.

She recommended that associations require anyone offering
home-based day- care to carry a comprehensive liability
insurance policy that names the association as a party to
the policy. Then, in the event of a suit, the provider's
insurance policy would cover defense costs.

Samuel Chernin, a senior insurance broker with E.B. Cohen &
Co. of Millburn, N.J., warned association officers that an
association policy normally requires the insured to notify
the carrier if any exposure exists that was not anticipated
when the policy was drawn up. If a large number of
youngsters are being served by home-based day-care-say 15 or
more, including the children of nonresidents-the exposure
was probably not anticipated, Chernin said.

Publication date: Oct 22, 1988

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Q. My daughter and son-in-law are original owners of a
Chicago condo. During their four-year residency, they had
two cats. They wish to rent the unit to a couple, also with
two cats, but new condo rules do not allow renters to have
cats or dogs, even though owners are allowed to have pets.

This rule seems unreasonable. They asked the board for an
exemption, but were denied. What is your view?

A. My view is that the rule is unenforceable. Pet rules must
apply equally to resident owners and tenants.

Q. I live in a 300-plus unit condominium. It appears that
our board is not practicing prudent fiscal management and
business judgment. Owners submitted a petition to the board
to reject a decision to charge a fee for a service that had
been included with our regular assessments. The board did
not honor the petition.

The board proposes to increase our regular assessments again
after a 9.75 percent increase last year and a prior three-
year special assessment. The board is also proposing a
change to the way owners vote for future board members that
will eliminate proxy voting.

What are the legal rights of owners to object to board
decisions? Can we contest the change to our election rules,
and should this change be an amendment to the bylaws which
requires a unit-owner vote?

A. The board of directors has the sole authority to adopt
rules. The board must also raise assessments to meet common
expenses.

The board can adopt a user fee for services not used by all
unit owners. In current times, directors are searching for
ways to increase association revenues while minimizing
assessment increases. This is a difficult task. The
alternatives for unit owners are to exercise the right to
contest assessment increases over 15 percent or to elect
directors who may have different spending priorities.

Under the Condominium Act, the directors can adopt a rule to
conduct elections by absentee ballot and, thus, eliminate
proxy voting. Section 18(b)(9)(B) of the Condominium Act
states that the board has the authority to adopt this rule
change, but Section 18(b)(9)(C) of the Act states that
owners may submit a petition within 14 days after the
board's decision for a vote on the absentee ballot rule.

Q. Due to several incidents involving tenants in our
community, the board of directors has proposed an amendment
to the declaration to eliminate rentals and restrict current
owners to a one-year lease if they are unable to sell their
units. I noticed in a previous column that an association
can terminate a lease if the owner or tenant violates
association rules. Is this an effective remedy?

A. The board of directors has the right to propose an
amendment to the declaration to eliminate rentals. Unit
owners may review this proposal and determine whether it
merits their support.

Section 18(n) of the Condominium Act permits the directors
to terminate a lease if a tenant or unit owner violates the
rules of the association. The enforcement of this
restriction will require the board to file a forcible entry
and detainer action, which is also known as an eviction
lawsuit.

The conduct of tenants is one factor for owners to consider
in determining whether to approve a leasing amendment. Unit
owners also must review this amendment in light of current
market conditions and the impact of leases on unit values.

Publication date: Jan 18, 2009

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Q. I'm the president of my condo association. We are
considering switching from self-management to hiring a
management company. Is this decision made by a vote of the
board of directors or does every owner have a vote? When is
it appropriate for the board to vote on matters versus the
vote of the entire ownership? Is there a law defining these
votes?

A. The board of directors will vote on the decision to hire
a professional management company. Section 18.4(a) of the
Illinois Condominium Property Act gives the board the
exclusive right to "provide for the employment and dismissal
of personnel necessary for maintenance and operation of the
common elements."

Unit owners vote on matters specified in the Illinois
Condominium Property Act or the declaration. Owners vote to
elect members of the board of directors, the sale of
property or the purchase of a unit on behalf of the
association. Owners also may vote on certain assessments and
expenditures such as charges for additions and alterations
to the property that are not included in the annual budget
or subject to spending limitations in the declaration and
bylaws. Owners also have the right to request a vote for
assessment increases exceeding 15 percent or a single
expenditure involving repair or replacements to the common
elements.

Q. Our board recently met to consider changing our
management company. We really didn't know how to proceed, so
in the end nothing was done. Are there resources available
to help boards choose a good condo management company?

A. Start with the publication of the Community Associations
Institute titled, "Management Companies: How to Find the
Right Community Association Professional" ($25). Contact CAI
at 888-224-4321 or e-mail CAIdirect@caionline.org.

You also may contact the local chapter of CAI, as well as
the Association of Condominium, Townhouse, and Homeowners
Associations, and Insitute of Real Estate Management, for
references of qualified management companies.

Q. The village where we purchased a condo, doesn't have a
real estate transfer tax. Our contract stated that the
seller will pay any state or county real estate tax, and any
municipal tax established by the village will be the expense
of the buyer, regardless of the provisions in the village
ordinance. Recently, our mayor announced that he
successfully negotiated the payment of real estate taxes
with the developer of our building. We understand that
village officials were surprised that buyers have to pay the
tax at closing. Is this common?

A. Typically, the buyer of real estate will pay a real
estate transfer tax levied by the local government
authority. Most contracts do provide that the seller is
responsible for payment of state and county transfer taxes,
and the buyer pays the local tax. The parties are free to
allocate transfer-tax obligations in their contract.

Q. Our association is 3 years old. About 35 percent of the
units are occupied by renters and owned by investors. We are
struggling to pass a cap on the number of renters. Do you
have any advice on clauses that should be included to make
this more acceptable?

A. Yes, you can provide for the exemption of current owners
who lease their units or, more broadly, exempt all current
owners. These clauses will enable current owners to keep
their unit as an investment and, thus, the amendment will
apply equally to all future owners. This won't have an
immediate impact on the number of leases, but it will
gradually reduce the number of rental units.

Publication date: Feb 8, 2009

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Q. My association doesn't allow renting if the condo was
purchased after 2002. I purchased mine in 2005. But there's
a clause in the bylaws stating that if there's a financial
need and, with board approval, owners can rent their unit
for up to one year.

Due to financial troubles, I haven't lived in my condo. When
I contacted management about permission to rent it, I was
told it was doubtful the board would consider my request
because many owners are in financial trouble. Is there some
way around this?

A. Declaration amendments to restrict leasing often contain
a hardship exception. The hardship exception permits the
board to approve a lease if the owner can demonstrate a
hardship that justifies short-term rental.

Courts have upheld hardship exceptions arising from the
death of the owner. An employee transfer may also be a valid
exception. Given the present condition of the market, many
condo owners may experience difficulty selling. In general,
it's difficult to justify a board granting a leasing
hardship exception for this reason.

Q. My board agrees that the developer messed up our
percentages of ownership. The percentages aren't fair, but
we don't know what the procedure is to change them. What
should they do?

A. The procedure is an amendment to the condo declaration
and bylaws approved by all the unit owners. If your
association is a condo, Section 4(e) of the Illinois
Condominium Property Act requires that changes to the
percentages of ownership must be made with the unanimous
consent of the ownership. Condo law states that the basis
for original ownership percentages is the value of the
units. The value relates to the developer's original listing
prices. To calculate the correct percentages, you'll have to
obtain the original development listing prices and calculate
the value of each unit compared with the total original
sales prices.

Q. I have a next-door neighbor who works in the afternoons.
When he comes home, usually after midnight, he and his
friends make so much noise that I'm up half the night. I've
called the management company twice, which claims to have
sent him letters on two occasions.

I've also called the police. Personally, I think the condo
president is afraid of this new owner. He has done nothing
to enforce the rules.

What should I do? I've lived in this condo for 26 years, and
I've never experienced what I'm going through now.

A. I recommend that you request a hearing with the entire
board of directors in a closed session. You can demand a
formal hearing to have the board consider imposing a fine
against the owner. His alleged offense is conduct that is a
nuisance or an annoyance to the average resident of the
building. The board has to determine that the actions
described in your complaint constitute a violation of the
rules.

While condo owners have to adjust to the varying lifestyles
of their neighbors living in close proximity, owners also
have to consider that they don't have the freedom to act as
if there's no one living next to them. At some point during
the day, particularly in the late evening, all residents
should observe quiet hours.

If the board doesn't take action, your only recourse is to
file a private nuisance action to stop the misconduct. This
alternative is expensive. It will help your case with the
board if you can find other residents who've been disturbed
by the same individual.

Q. I am the current treasurer of my condo building. It was
recently discovered that the previous treasurer is not an
owner and the board was aware of her status. Both she and
the past president refused to turn over records of the
association after the new board was elected last July. What
recourse does the current board have in gaining possession
of the records?

A. Have association counsel issue a warning letter to the
former president and treasurer demanding the return of
association property. If the treasurer, in particular,
refuses, the board will have to file suit.

Publication date: Feb 15, 2009

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Q. Our bylaws state that the board should furnish each owner
with an itemized accounting of the common expenses each
fiscal year. Until last year, previous boards always mailed
a copy of the audited financial statements to every owner.
Last year, this wasn't done. At this year's annual meeting,
board members said that homeowners must request this from
the management company. Is this acceptable?

A. No, this is not acceptable. The Condominium Act clearly
states that the board of managers shall annually supply an
itemized accounting of the common expenses for the prior
year to all owners.

The language of the statute does not make this a
discretionary item, nor does it require the owners to
request it.

Q. The board of my association voted at the end of the year
to change the procedure for electing directors to a
staggered election process without putting the matter to a
vote of the owners. Our bylaws state that starting with the
first annual meeting, owners elect five directors. At the
first annual meeting, two people were elected for two years,
and three people were elected for one-year terms. Based on
this language, I think that all five positions on our board
should be open for election this year.

The association's attorneys issued an opinion that a change
to a staggered election procedure could be made by a board
resolution without a vote of the unit owners or an amendment
to the bylaws. As a result, three outgoing members who were
to serve one-year terms were given an automatic extension to
two-year terms and only two positions were open for election
this year.

Should this process have been voted by the ownership?

A. I agree with the opinion of the association's attorneys.
There appears to be some missing language in the bylaws you
cited. If properly drafted, this bylaw provision should have
provided that after the initial two- and one-year terms,
respectively, each director would serve for two years. By
adopting a resolution, the board is exercising its right to
interpret the document.

Twenty percent of the ownership can submit a petition to the
board to vote on an amendment if you believe the ownership
should have the final say on this issue. The staggered
election system is preferable, because it ensures both the
expiration of some board terms, while preserving continuity
for a group of directors who remain in office.

Q. I purchased a condo in a small building just over one
year ago. Although our condo declaration states that we must
have four meetings per year, none was called in 2008.

Also, the president is acting as treasurer. He has ignored
my request for a copy of the 2008 budget even though I cited
the Illinois Condominium Property Act. We also have a
secretary who has done nothing this past year.

If I can't get enough support to form a new board, can I
hire my own attorney to get a copy of the budget and
associated line items?

A. It appears that your association is not functioning
properly. The Condominium Act mandates that the association
hold four board meetings per year. The board is required to
submit a copy of the annual budget to the owners.

As an individual, you can hire your own attorney. You may
assert a claim under Section 19 of the Condominium Act and
recover attorneys' fees if your request is not properly
granted.

Publication date: Mar 8, 2009

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Q. I have lived in a duplex that is part of a homeowners
association for the last 4 1/2 years. To date, the board has
not been turned over to the unit owners. The declaration
stated that turnover would take place when 75 percent of the
units were sold, or five years from the date of the
declaration, whichever comes first.

I have read that a developer must turn over control to a
condo board after three years. Is this five-year limit
imposed by our developer legal?

Can we, as owners, take control of the association? The
builder has rented several of these duplexes and has not
been paying assessments, which has put us in the red on our
maintenance fees.

A. Regardless of whether your association is a condo or
another form of homeowners association, the developer must
turn over control of the board of directors to the unit
owners no later than three years from the date the
declaration was recorded. This turnover requirement is a
provision for condos in Section 18.2 of the Condominium Act
and applies to other associations known as common interest
communities under Section 18.5 of the Act.

If your association is not a condo, take the initiative and
call a meeting of the owners for the purpose of electing the
first unit-owner board. Send the developer a copy of the
notice, elect the first board, then obtain an accounting of
the unpaid assessments.

The only significant distinction is the developer's
obligation to pay assessments for your type of association.
If the association is a condo, the developer owes
assessments starting on the date of the first closing. If
your association is not a condo, the developer may be exempt
from paying full assessments from the date of the first
sale.

In either case, the owners should be in control of your
community.

Q. I'm the new president of our 24-unit condo association.
I'm interested in pursuing self-management for our
association, but don't know if that's allowed or is a major
headache waiting to happen. We aren't pleased with our
current management company, but with 24 units, I think we
could save major dollars. By the way, we're in Wisconsin.

A. Although you should consult with local counsel on any
legal questions, if your project were located in Illinois,
there is no legal impediment to self-management. The
business question is whether the savings from self-
management outweighs the greater legal risk directors have
by taking on the duties of a professional condo manager.
With organization and discipline, plus cooperation of the
owners, you may be able to manage the condo. Even in that
case, the board should consider hiring outside professionals
for matters such as accounting and major repairs.

Q. When voting for a new board of directors in an Illinois
condo, is a candidacy form required? Is a paper ballot
required? May anyone be a proxy? Should a candidate be
excluded if he or she works evenings and cannot attend our
regular quarterly meetings?

A. Candidate forms are not required, but are advisable so
the owners can review the qualifications of potential board
members. A paper ballot is required for condo voting. Owners
must cast ballots for either a proxy voting format or an
absentee ballot format.

Any person may act as a proxy for a unit owner.

A. candidate should not be automatically excluded from the
board because of his or her work schedule. But board
candidates who cannot commit to regular meetings should not
run for the board.

Publication date: Mar 22, 2009

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Q. I am a new board member in a 40-unit condo building. Some
of the board members have served this building for more than
10 years, and they seem reluctant to allow new board members
to have a say. I have several questions regarding board
operations. Can the board use secret ballots to decide board
issues?

Is there also a requirement in either the act or any state
law regarding minimum temperature settings in a heated
garage where a living space is above the garage?

A. The purpose of the open meetings provision in Section
18(a)(9) of the Illinois Condominium Property Act is to
permit owners to witness decisions being made by the board
that affect their association. Section 18 of the act
authorizes the use of secret ballots for voting by unit
owners. The secret ballot provision in the act does not
apply to board decisions.

Robert's Rules of Order generally requires a governing body
to conduct business by voice vote unless a participant in
the meeting moves for a written vote. Boards that adopt
Robert's Rules as their formal method of parliamentary
procedure use written ballots for "sensitive" issues, such
as the election of officers. Generally, the idea of a secret
vote conflicts with the intent of the open meeting
provisions of the Condominium Act. Board decisions should be
open and transparent.

There is no requirement in the Condominium Act or state law
concerning minimum temperature settings in a heated garage.

Q. I recently purchased a condo in a building that was
rehabbed by a local developer about 3 1/2 years ago. Last
October, the city contacted our board to advise us that a
water meter was not installed in our building as required by
local ordinance. We obtained estimates ranging from $20,000
to $25,000.

We were directed by the city to have a signed contract by
the end of last year. We did not meet that deadline. We have
not heard further from the city.

What is our responsibility for installing the meter? Who is
liable?

A. Install the water meter as soon as possible. The building
is now your responsibility.

However, the association may have a claim against the
developer.

Ask the city building department whether a bond was posted
by the developer to secure completion of required
facilities. That money may be available to reimburse the
association.

Publication date: Mar 29, 2009

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Q. We are a 60-unit condo building. One of our unit owners
built a new home and moved out 26 months ago. These owners
have made no effort to pay their assessments in that time.
The condo has not been shown for sale.

At the advice of our attorney, we took the legal steps and
now have possession of the unit. Our attorney advises us to
rent out the unit, but the condo bylaws prohibit renting.

The owners owe us more than $12,000, and we just cannot
continue to forfeit this money. Are there any other options?

A. Lease the unit. Section 9-111.1 of the Illinois Code of
Civil Procedure allows a condo association to lease a unit
to collect a judgment for unpaid assessments. The board can
enter into a written lease for a term not to exceed 13
months from the date the association can enforce the
judgment for possession. Associations have to wait a minimum
of 60 days to enforce this judgment.

The statutory right of an association to exercise its
collection remedies supersedes restrictions against the
leasing of units in your declaration and bylaws.

Q. Our unit-owner board was elected late last year. At that
time, the new board signed a two-year contract with a
managing agent. The contract contains a clause that states
that the agreement may be terminated for cause upon 90 days'
prior written notice. It also says that if the association
terminates the agreement, it must pay two months of fees to
the agent.

Our association declaration states that the term of any
management agreement shall not exceed two years and shall be
terminable for cause by the association on 30 days' written
notice and terminable without cause by payment of a
termination fee by either party on 90 days' written notice.
Does the association's declaration supersede the agent's
contract?

We want to terminate and do not want to pay a two-month
golden parachute for the poor services we have been
receiving.

A. Someone should have reviewed the contract to make sure
that it conformed to the declaration. It appears both the
agent and the board ignored the termination provisions of
your document.

The board signed the contract and is bound by it. If the
association wants to get out of this agreement, it will have
to pay the two-month fee.

Q. I live in a fairly old condo building that has various
structural problems, including defective exterior brick.
Repairs have not been made yet, but owners have experienced
varying degrees of water damage to their ceilings and walls
from recent rains.

If the water is entering the building because of exterior
wall defects, and the board is aware of these problems but
has not bothered to fix the walls, what is my
responsibility?

A. As part of their legal obligation to maintain the common
elements, the board of directors is responsible for exterior
wall repairs. The directors must take steps to prevent water
from entering the units from the exterior common elements.

The board's repair obligation will include not only the
exterior walls, but drywall repair inside the units. The
insurance coverage for an owner should cover damage to unit
improvements and furnishings.

Q. Our condo association is charging us a special assessment
fee to cover a shortfall in assessments. Because of
foreclosures in our community, there will be a shortage of
monies for the association to operate. We must pay an
additional $400 in assessments over the next four months.

Can the board continue to do this next year if the
foreclosure epidemic continues? Why is there not a law
requiring the bank to pay assessments from a delinquent
borrower?

A. The board of directors does have the right to levy a
special assessment to cover a shortfall in income from the
association budget. While the special assessment was
necessary to cover a shortage of assessments this year, the
directors may consider increasing assessments to cover an
anticipated shortfall in collections next year.

State law does not require a lender to pay current
assessments until certain events occur. Until the bank
obtains title or possession of the unit, or a foreclosure
sale occurs, the lender does not have the legal obligation
to pay assessments.

Publication date: Nov 16, 2008

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  Q: We are a self-managed town home association. A
homeowner in our association has advocated that board
members be compensated for serving on the board. I presume
this is against the law, but am not sure.

A: Pursuant to Section 1-25 of the Common Interest Community
Association Act, members of the board of a community
association shall serve without compensation unless the
community instruments state otherwise. This means that
community association board members are prohibited from
receiving compensation unless the declaration or bylaws
allow for board members to receive compensation.

Even if the community instruments allow for compensation, it
is a board decision whether to do so. Except in very rare
circumstances, most community, and condominium, associations
do not compensate board members.

Q: I am a unit owner in a condominium. Many of the unit
owners want to increase the quorum requirement for a unit
owner meeting, and the percentage of unit owner approval to
amend the declaration, to avoid a situation where a small
group of unit owners can have a disproportionate impact on
the association. Are there minimum or maximum percentage
requirements we should be aware of?

A: Section 18(b)(1) of the Condominium Act states the
default quorum requirement is 20 percent; however, the
condominium bylaws may be amended to increase the quorum
percentage. There is no maximum percentage for a quorum, but
it is not prudent to have a quorum requirement that is
difficult to reach.

Section 27 of the Condominium Act allows unit owners to
amend the declaration and bylaws, but there is a minimum and
maximum percentage to do so by state law. The minimum
percentage to amend a declaration is the affirmative vote of
two-thirds of the unit owners and the maximum percentage is
three-fourths of the unit owners. Percentages outside that
range are void.

Q: Due to a lack of quorum of the unit owners, our
condominium association has been unable to hold an annual
meeting for several years. The last properly elected board
of directors continues to serve and has filled board
vacancies by a board vote when there have been resignations.
Can the board continue with this process?

A: As a practical matter, if due to unit owner apathy the
association cannot meet the quorum requirement to hold an
annual meeting, the board has no choice but to continue
acting in the manner described above. As a legal matter,
board members continue to serve until the annual meeting
where their board term expires.

The board should at least annually call a special meeting of
the unit owners in an attempt to show proper diligence. In a
situation where the few remaining unit owners who care about
administering the association no longer desire to serve on
the board, the appointment of a receiver by a court may be
the next stop on this train to nowhere.

Publication date: Aug 17, 2014

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  Q. The board of directors in my town home association is
proposing to amend our declaration to shift the cost of
exterior painting of our town homes from a common expense to
an owner expense. If the board is successful in soliciting
the requisite owner approval for the amendment, what control
would the board have to dictate color or material, since
this will no longer be a common expense?

A. The answer depends squarely on the language of the
proposed declaration amendment. There is a difference
between allocation of cost and which party maintains control
over the maintenance and/or materials.

From the context of the question, the current relevant
declaration provision appears to give the board full control
over the maintenance of the exterior painting.

If the board wants to shift the cost of exterior painting to
the owners, the best practice would be for the language of
the proposed declaration amendment to state exterior
painting shall be an owner expense. It should also state
that either the owner is responsible to contract for
exterior painting after board approval based on standards
set by the board, such as paint color, materials, insured
and bonded contractors, etc., or the declaration amendment
should contain an express provision that states the board
shall perform, or cause to be performed, exterior painting
and shall assess the cost thereof to the owner(s) who would
benefit from it.

Q. I own a unit in a condominium association with an
underground parking garage separately managed on behalf of
the association. The association's rules state that each
unit owner will be allocated a parking space for a monthly
rental fee. I rent out my unit, and my tenant has requested
a parking space. However, while the board is willing to
allocate one to him, the association is requiring me, the
unit owner, to sign a permission form for the tenant to be
able to rent the space and makes me responsible for any
unpaid charges by my tenant. Can they do this?

A. When a condominium unit owner leases a unit, all
association governing documents are deemed incorporated into
the lease pursuant to Section 18(n) of the Condominium Act.
Further, Section 9.2 of the Condominium Act expressly states
that if a tenant of a unit owner is in default of the
performance of an obligation under the Condominium Act or
the association's governing documents, the unit owner is
ultimately responsible.

Therefore, the association's requirement that a unit owner
give written permission to a tenant to rent a parking space
in the scenario you describe, and hold the unit owner
financially responsible for any defaults in payment, is
consistent with the law and allowed.

Q. I live in a 10-unit, self-managed condominium building.
We are having issues with our waste removal vendor. Our
board entered into a long-term contract with set cost
increases, and the contract goes through December. We have
since obtained quotes from other vendors for similar
services for 40 to 50 percent less. How can we cancel our
waste removal contract?

A. It is standard for associations to have many contracts
with various vendors for services ranging from landscaping
to cable to waste removal and the like. Absent fraud, the
ability to terminate a contract is dictated by the express
terms of the contract.

When a party enters into a long-term contract, it is common
to have fee escalation clauses over time. It is possible the
beginning fee of the contract was below market and escalated
over time.

Considering that the natural expiration of the contract
occurs in a mere five months, the association is best served
to not breach the contract and subject itself to damages and
a lawsuit, but to ride it out and enter into a contract with
a different vendor in a few months.

Publication date: Jul 12, 2015

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  Q: Our condominium association plans to tear off and
replace the roofs of our 12-building complex. Instead of the
board retaining an architect to prepare bid specifications,
the board gave a set of goals to three contractors and
allowed each contractor to create their own scope of work.

The result was three bids with three very different scopes
of work. Several unit owners have voiced concern that the
board is not following best practices relating to a
construction project. Are the concerns of the unit owners
justified?

A: The best practice relating to any major construction
project is for the community association to retain an
expert, such as an architect, engineer or specialized
consultant, to prepare bid specifications on the scope of
work for the project, then request that vendors submit bids
on the same scope of work. Thereafter, the board can compare
apples to apples and choose the best vendor for that
association.

As a practical matter, layperson board members would not
have the expertise to know which scope of work would be
appropriate for a construction project.

Q: I live in a homeowners association. Our declaration and
bylaws set the number of directors at five. At the last
annual meeting, there were three candidates for two open
board positions. However, the owners present voted by
acclamation to elect all three candidates to the board. This
resulted in our board operating with six directors instead
of five. In the annual meeting, there was no motion to
increase the number of directors, nor any prior notice to
the owners that the board size would be increased. Was this
proper?

A: The Common Interest Community Association Act that
applies to homeowners associations does not address the
issue of increasing the size of boards directly. However,
Section 1-20 of the act does state that a declaration and
bylaws may be amended in writing, with the amendment being
recorded.

Also, an association's governing documents will commonly
address the issue of increasing or decreasing the size of
the board and set forth the procedures to do so.

From the facts provided, it does not appear the owners
properly increased the size of the board from five to six.
Furthermore, it is never recommended to have an even number
of directors on a board. If the board is evenly split on a
decision, the directors would be unable to effectively
conduct business.

Q: Our condominium association was created in the 1990s
under then-existing Illinois condominium law. The
declaration was amended and restated in 2006 and properly
recorded. The Condominium Act is amended yearly, so how
often should an association amend and restate its
declaration and bylaws?

A: Section 27(b)(1) of the Condominium Act allows a
condominium board to amend and restate its declaration and
bylaws to bring the declaration and bylaws into compliance
with the act. Such an action may be approved by a vote of
two-thirds of the board or by a majority vote of the unit
owners at a meeting called for such purpose.

Though the Condominium Act is amended almost yearly, it is
not advisable to amend and restate the declaration and
bylaws yearly. A rule of thumb is that a declaration and
bylaws should not be amended and restated more frequently
than every 15-plus years.

Legally speaking, the Condominium Act provisions prevail in
case of any inconsistency with outdated declaration and
bylaws provisions, so the real benefit to an amended and
restated declaration is to prevent the board from not
unwittingly enforcing invalid provisions.

Publication date: Jan 12, 2014

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  Q: I live in a condominium unit, and the adjacent unit has
a confirmed case of bedbugs. The pest control company
treating the infected unit has inspected my unit and
confirmed that I do not have a bedbug infestation. However,
it is my understanding that industry guidelines recommend a
pre-emptive treatment to adjacent units surrounding an
infected unit.

Who is financially responsible for a pre-emptive bedbug
treatment?

A: Pursuant to Section 9.1(a) of the Condominium Act, and
condominium declarations, unit owners are responsible for
damages that occur as a result of the use or operation of
their unit or from their own conduct.

Thus, if bedbugs were confirmed to have spread to the common
elements or other units in the building, or the pest control
company itself recommends a precautionary treatment of
adjacent units based on the facts and circumstances at hand,
the unit that is the source of the bedbugs would be
financially responsible for the bedbug abatement treatments.

However, to the extent the bedbugs have not traveled to the
common elements or to other units, or the remediation
contractor does recommend a precautionary treatment to
unaffected units, such a precautionary treatment would be at
the discretion of the unit owners of adjacent units because
no damages have occurred.

Thus, the financial responsibility for such a treatment
falls on the unit owner who requests it.

Q: I live in a 40-unit, self-managed town house association.
Under our governing declaration, the board is responsible
for snow removal of driveways. However, the board has
decided that driveways will not be plowed unless there is 2
inches or more of snowfall. This is a big inconvenience, and
not acceptable to me.

I would like to hire a contractor to remove snowfall under 2
inches and deduct the cost from my monthly association dues.
Is this allowed?

A: Illinois law grants the board of directors broad
discretion to use its judgment for the maintenance, repair
and replacement of common areas. Since a minimum 2 inches of
snowfall is the standard for snow-removal contracts, such a
board standard is reasonable notwithstanding the standard is
subjectively unreasonable to you.

As far as an owner performing additional work because he or
she believes the board's maintenance is insufficient, there
is no basis in the law to deduct such costs incurred from an
assessment payment.

Q: Our condominium association allows dogs, but association
rules prohibit residents from allowing dogs to relieve
themselves on the common elements and city of Chicago
property adjacent to the association. The board will levy a
fine if a dog of a unit owner relieves itself on city
property.

Apparently, the goal is to force residents to have their
dogs relieve themselves in front of neighbors' homes. Is
such a rule enforceable?

A: Section 18.4(h) of the Condominium Act grants a
condominium board the authority to adopt rules and
regulations governing the operation and use of association
property. There is no basis in the law for a condominium
association to regulate municipal property or levy fines
against unit owners for association rules governing
municipal property. Thus, any attempt to enforce rules
governing residents' use of municipal property, or levy
fines for alleged violations of such rules, is not valid.

Publication date: Jan 19, 2014

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  Q: I live in a condominium association and just learned
that the ballots for our board elections can be reviewed by
any unit owner after the election.

I thought the identity of candidates for whom I voted would
remain anonymous so other unit owners would not know how I
voted. Can the board adopt rules requiring secret ballots at
an election, or is a condominium declaration amendment
required?

A: If a condominium board election is not conducted by
secret ballot, Section 19 of the Condominium Act does allow
unit owners to review ballots and proxies for the preceding
12 months upon stating a proper purpose in writing to the
board.

If a condominium board desires to change its election
procedures and prospectively conduct its annual election by
secret ballot, Section 18(b)(10) of the Condominium Act
allows condominium boards to enact rules and regulations to
conduct elections by secret ballot; a declaration amendment
is not required.

Secret ballot rules must contain provisions to verify the
identity of the unit owner issuing a proxy or casting a
ballot. This is usually in the form of signature cards.

Q: In a few weeks, our condominium association will hold its
annual meeting to elect new board members.

I just learned that our management company will run the
entire election from check-in to ballot tabulation.

I was under the impression that management companies were
not allowed to tabulate ballots. What is the correct answer?

A: There is nothing in the Condominium Act, or standard
condominium declarations and bylaws, that prohibits or
prevents management companies from tabulating ballots at an
annual meeting.

In fact, other than high-rise condominium associations,
where an independent auditor is commonly used to tabulate
ballots due to the number of ballots and/or contested
elections, most small and midsize condominium associations
customarily request that their management company run the
meeting and tabulate ballots.

In self-managed condominium associations, the board of
directors and appointed election judges tabulate ballots.

City of Chicago Condominium Ordinance amendment. On Jan. 15,
the Chicago City Council adopted an amendment to the Chicago
Condominium Ordinance relating to the production of
financial books and records to unit owners.

Effective 30 days after adoption, Section 13-72-080 of the
City of Chicago Municipal Code has been amended to allow
unit owners to inspect books and records of account for the
condominium association's current and 10 immediately
preceding fiscal years, and allows the association 30
business days from the date of written request to produce
such records.

The amendment modified the previous Section 13-72-080, which
did not limit books and records to be produced to the last
10 years, and required the association to produce such
records within 10 business days. The amended Section
13-72-080 is now more closely aligned with Section 19 of the
Condominium Act in language and time periods.

Publication date: Jan 26, 2014

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  Q: Living in a high-rise condominium, I find smoke odors
can be a problem. I have read about possible legislation on
the smoking issue, but nothing has been adopted. We have
issues with smoke odors transmitting from unit to unit in
our building, and the board says there is nothing it can do.
Any suggestions?

A: Currently, there is no pending legislation regarding
smoke transmission in condominium associations in Illinois.
Practically speaking, it is more likely we will see new case
law on the subject before we see legislation.

Condominium boards do have available remedies to address
smoke odor transmission between units, but whether a
condominium board is willing to get involved in what could
be a subjective smoke odor dispute between unit owners is
another question.

Depending on the stench that transmits to another unit,
smoke odors may rise to the level of a nuisance. The board
possesses the same remedies to levy a fine for nuisances, or
file an injunctive lawsuit to stop such nuisances, as it
does when a unit owner regularly plays music too loudly,
holds raucous parties or intentionally bangs on walls and
floors.

The unit owners of a condominium association may adopt an
amendment to their declaration and bylaws that bans smoking
in units altogether. The unit-owner approval threshold is
contained in the amendment provisions of the declaration,
which cannot be more than 75 percent pursuant to Section 27
of the act. Such amendments are a trend, and a couple of
Chicago condominium high-rises have adopted smoking ban
amendments.

Q: I live in a condominium, and our annual board election
will occur shortly. Can I send my vote for the annual
election via email to the management company because I do
not have a proxy form? I sent such an email with my vote to
the company but was advised that my email was not a valid
vote.

A: Unless a condominium association's declaration and bylaws
allow unit owners to email their vote for an annual meeting,
such an attempted vote by email is invalid. For clarity, a
proxy is not the same as a ballot. A proxy is an assignment
of a unit owner's right to appoint another individual to
appear at the annual meeting and vote on his or her behalf.

A ballot is used by a unit owner or his or her proxy to vote
in person at an annual meeting. An absentee ballot, which is
allowed pursuant to Section 18(b)(9) of the Condominium Act
if a condominium board adopts absentee ballot rules and
regulations, allows a unit owner to vote with an official
election ballot before an annual meeting.

Q: Our condominium association just voted to amend our
declaration to conform it with the Condominium Act. Some
owners believe the revised provisions take effect upon
adoption, while others believe the amended and restated
declaration must be recorded to be effective. Which owners
are correct?

A: Section 27 of the Condominium Act expressly provides that
a vote of either two-thirds of the board members or a
majority vote of the unit owners at a meeting may bring the
declaration and bylaws in conformity with the Condominium
Act. The amended and restated declaration must be recorded
with the county recorder of deeds to be effective and
enforceable.

Publication date: Feb 9, 2014

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  Q: We live in a small condominium association, and the
unit above us has three children under 6 years old living
with their parents.

In the early morning and throughout the afternoon and
evening, the children are running and stomping, causing
unreasonable noise and vibrations in our unit. Sometimes it
feels like the ceiling will come down.

When we approached the unit owner, he told us to use
earplugs, and the management company refuses to take any
action. What can we do?

A: When living in a community association, homeowners will
be subjected to noises and sounds they would not otherwise
be subjected to if they lived in a single-family home.
However, all declarations and bylaws contain provisions
prohibiting noxious or offensive activities from occurring
in a unit. The board of directors may levy fines for
violations of this prohibition, and the board may even file
a lawsuit seeking an injunction to prohibit such conduct if
it does not stop upon demand.

The issue is how to apply such a provision to the facts. The
board should use a subjective, and objective, standard. This
means that not only must the complaining unit owner
subjectively feel there is a nuisance, but the nuisance
should be verified as being objectively unreasonable.

Small children will create noise when living and playing in
a condominium unit. However, just as a stereo being played
too loud in a unit may rise to the level of a noxious
activity, excessive running and jumping in a unit may give
rise to a noxious activity. It is fact-specific.

In such cases, the complaining unit owner should submit
written complaints to the managing agent and board,
requesting action to abate violations of the noxious-
activities prohibition. The board may first discuss possible
solutions with the parties for the noise issues, but
ultimately, the board may levy fines or file a lawsuit if
the unit owner refuses to take reasonable measures to
mitigate unreasonable noise.

Q: I live in a small self-managed condominium association.
The unit owners have recently learned that the board of
directors has elected to give themselves a 60 perce nt
discount off their monthly assessments as compensation for
their time spent serving as board members. Is this allowed?
Will the board members have to pay the association back?

A: Condominium directors serve on the board without
compensation unless the declaration and bylaws allow for
compensation to be paid to board members. Section 18(o) of
the Condominium Act prevents a condominium board from
forbearing assessments.

This means no unit owner or board member may be given a
discount off their monthly assessments for any reason. Those
board members who self-servingly gave themselves a 60
percent discount off their monthly assessments are liable to
pay back all unpaid condominium assessments, and future
boards should visit that issue.

Q: Two board members in our condominium association have
recently married. The wife has moved into her husband's
unit, and her unit is for sale. Is it legal for both of them
to continue serving on the board?

A: Any unit owner may serve on a condominium board, but only
one individual per unit is entitled to serve on the board
representing a particular unit.

If a husband and wife owns only one unit, only one of them
may serve on the board. On the other hand, as long as a
husband and wife own two or more units, each may serve on
the board because each will represent different units.

Publication date: Mar 16, 2014

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  Q: I am a board member of a condominium association. Can
the board president deny a board member an opportunity to
serve on a committee?

A: Most commonly, the articles of incorporation or bylaws of
a condominium association allow for the creation of a
committee by the board, not the board president. Regardless,
the Illinois Not-for-Profit Corporation Act allows for the
creation of committees by a majority of the board.

All committee members serve as long as the board allows the
committee to exist. Under the act, two or more board members
must be assigned to the committee; however, a board may also
create an advisory board or commission (ad hoc committee)
without board members.

The committee's purpose and scope of authority are also
established by the board. In sum, a majority of the board
dictates committee membership, scope and purpose.

Q: I am a condo unit owner who recently renovated my
bathroom. During the installation of the new shower faucet,
a leak occurred that damaged the common elements.

Our contractor repaired the common elements to the
satisfaction of the board. However, the board is demanding
to hold $4,000 in escrow just in case the repairs ever
deteriorate. Is this allowed?

A: On occasion, when unit owners in a condominium building
replace plumbing fixtures, a water leak into the common
elements and other units occurs.

Under most declarations and Section 9.1(a) of the
Condominium Act, the unit owner is responsible for the
damages that originate from his or her unit. The board may
either accept repairs from the unit owner's contractor or
repair the damage itself and assess the cost back to the
unit owner.

However, there is no authority under the Condominium Act or
Illinois law for a board to demand money be held in escrow
interminably for possible future deterioration of such
repairs.

If the repair turns out to be inadequate, the association
may perform additional repairs and assess the unit owner
such additional repair costs at that time.

Case law update. Community associations that do not have
legal counsel representation need to be aware of a recent
Illinois Appellate Court case published March 29, which held
that nonlawyers cannot represent corporations in
administrative hearings (building code court).

This applies to community associations because they are
corporate entities, and it means that neither board members
nor property managers can represent their community
associations in administrative hearings.

According to the Illinois Appellate Court, corporations must
now have an attorney representing them in such proceedings.

Publication date: Apr 27, 2014

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  Q: I live in a town home community association where the
board contracted with a new management firm within the past
year. Several of the owners have requested a copy of
contracts to which the association is a party, including the
management contract. But the board and management company
have refused to allow the owners to review copies of
association contracts. Is the board acting correctly?

A: Section 1-30 (i) of the Common Interest Community
Association Act states what records a community association
must maintain and provide to an owner upon request, and
allow to be copied at the owner's expense. Those records
include association's governing documents; association
financial records (receipts and expenditures); ballots and
proxies upon stating a proper purpose; and contracts, leases
or other agreements entered into by the board.

Therefore, an owner requesting to see a copy of the
contracts to which the association is a party is entitled to
inspect and copy such a contract. Section 1-30 goes on to
provide a remedy for improperly denied access to records,
which includes the owner filing a lawsuit and recovering
attorneys' fees and costs.

Q: Recently, signs prohibiting concealed carry firearms were
installed in the basement and laundry room of our
condominium association, but the board has not adopted any
rules and regulations regarding concealed carry. Can the
board prohibit concealed carry firearms without adopting
rules and regulations by merely posting signs?

A: The Illinois Firearm Concealed Carry Act allows an owner
of private real property to prohibit carrying of concealed
firearms on the property. In a condominium context, pursuant
to Sections 9.1(b) and 18.4(a) of the Condominium Act, the
board administers the common elements and makes such
decisions.

Therefore, if a board desires to prohibit concealed firearms
from being carried within portions of the common elements
consistent with provisions of the concealed carry act, the
board would need to adopt rules and regulations to
accomplish that objective. Once a rule is adopted, the board
must post the required signs at the entrance of the building
and where the firearms are prohibited.

Q: Our condominium board discusses fines and other unit
owner violations in closed sessions and then approves the
fine at open board meetings; but the board minutes do not
contain any reference to the unit for which a fine was
assessed or the amount of the fine. The minutes merely
contain a sentence stating "a fine for rule violation was
levied" with no other information. What information should
be in the board minutes?

A: Pursuant to Section 18(a)(9) of the Condominium Act, the
board may conduct fine hearings and/or unit owner violations
in closed session and then approve the fines in an open
session. In order for the board to properly approve a fine
against a unit in open session, however, the board needs to
identify the unit number and the amount of the fine. A
description of the violation or the unit owner's name is not
required to be contained in the minutes.

ctc-realestate@tribune.com

Illustration Caption: Photo: Owners in an association can
ask to see and copy many documents related to the governance
of the association. GETTY PHOTO

Publication date: May 18, 2014

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  Q: Our condominium has a large outdoor parking lot. Each
unit owner is guaranteed use of two parking spaces, one
labeled reserved and the other wherever there is an opening.
In addition, there are many extra parking spaces in the
parking lot. The board has advised a unit owner with four
drivers that they must pay for the third and fourth cars to
park in the parking lot or risk being towed. What are the
rights of the board on this issue?

A: From the description, it appears the parking lot and
spaces are a common element with a policy of each unit
getting the benefit of two spaces to use.

Assuming the parking spaces and lot are common elements, the
board may administer the parking lot as it deems appropriate
and, thus, has the authority to administer the use of extra
parking spaces in the lot. This includes the authority to
charge a unit owner for permanently parking a third and
fourth vehicle in the parking lot.

Unit owners must comply with board-adopted policies
governing the common elements, including those policies
relating to the common-element parking lot.

Q: I am a board member of a midsize condominium association.
We have a group of unit owners who are over 90 days in
arrears in paying their assessments.

Short of taking legal action to collect the assessment
delinquency, can the board publish their names on our
bulletin board or disclose their names at an open unit-
owners meeting?

A: Though there is no legal prohibition to publishing the
names of delinquent unit owners, such a publication cannot
go beyond the unit owners, and the information must be
accurate at the time it is published. Otherwise, the
association and board members could find themselves as
defendants in a defamation lawsuit.

As a rule, publishing or disclosing the names of delinquent
unit owners is not recommended.

What is recommended is to pursuing legal action promptly and
forcefully against unit owners to get them to pay their
delinquent assessments. Per Section 9.2 of the Condominium
Act, the board is entitled to recover its attorneys' fees
and costs. Experience dictates that legal action, not the
embarrassment of name publication, is the most effective way
to collect delinquent assessments.

Q: I live on the first floor of a 12-unit condominium with a
common water heater in the basement. A few months ago, the
water heater was replaced. Since that time, my kitchen
plumbing fixture aerator needs to be cleaned every week.

The board has not been helpful in finding a resolution. Any
suggestion on how to get cooperation?

A: It is well established that a condominium board must
maintain, repair and replace the common elements. See
Section 18.4(a) of the Condominium Act.

If the common-element water heater is not working properly,
sending debris into unit plumbing fixtures throughout the
building, the board must address this issue, because it is a
common-element issue. But if the plumbing fixture in a unit
is somehow not working properly, including the aerator, that
would be a unit owner's issue to settle.

A suggestion would be to obtain an opinion from a credible,
independent plumber that the alleged issue is being caused
by the improper operation of the common-element water
heater, and to provide the board with that opinion.

The cost of obtaining that opinion is a unit owner's cost.
Short of such an opinion, unless the issue affects all
units, the board would be hard-pressed to believe that this
issue is more than a unit plumbing fixture problem, which
would be a unit owner's responsibility to address.

Publication date: Jun 1, 2014

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  Q: We live in a large condominium association that
includes a pool.

The pool is open from 10 a.m. to 8 p.m. Because many
children use the pool during those hours, some adult
residents have requested that the board establish an adult-
only swim for designated hours. The board has denied our
request, stating that adult-only swim times are
discriminatory. Is it correct?

A: The rights of individuals age 18 or under who are
domiciled with a parent or legal guardian are protected
under the Federal Fair Housing Amendments Act of 1988.
Familial status is specifically recognized in the act.

Federal case law expressly holds that a community
association may not ban individuals under 18 from using
association pools during adult-only swim times based on
familial status.

Adult-only use restrictions are deemed discriminatory under
the fair housing case law because they treat families with
children less favorably than households composed solely of
adults.

Depending on the facts, for some amenities such as workout
rooms and saunas, a use prohibition may be allowed if it is
based on a legitimate health and safety concern.

Q: I am contemplating buying a condominium unit that is in
foreclosure and was informed that I would receive only a
special warranty deed versus a warranty deed at closing.
What is the difference?

A: In essence, the primary difference between a warranty and
special warranty deed is that a warranty deed is a seller
representation to the buyer that the seller has good title
to the property that extends back through the chain of
title, whereas a special warranty deed grants the same
representation as to title, but limits the time of the
representation to the period of ownership of the seller.

As a general proposition, warranty deeds are preferred over
special warranty deeds because of the representations
extending for a longer period.

However, special warranty deeds are standard in foreclosures
because lenders are willing to make representations
regarding title only during their period of ownership.

To address this differential, it is highly recommended that
title insurance be procured when accepting a special
warranty deed (or a warranty deed for that matter) to have
insurance coverage in case of a claim against title.

Q: I live in a condominium and have been experiencing water
leaks into my unit whenever there has been driving rain
since October 2012.

As a result, my windows are damaged, as well as other parts
of the unit.

The board has been slow to address the issue. Is there a
maximum amount of time that a board has to address water
infiltration?

A: Section 18.4(a) of the Condominium Act states the board
shall administer the property and maintain, repair and
replace common elements.

Though there is no maximum amount of time imposed on a board
to make necessary repairs, the board has a fiduciary
obligation to prevent water infiltration from the exterior
into the interior of units and must act reasonably in
fulfilling its obligations.

A board that disregards ongoing water infiltration into a
unit for years, depending on all the facts, could be held
liable for breach of fiduciary duty.

However, unit owners should be aware that if the water
infiltration stems from a limited common element, such as
windows, doors or balconies, most condominium declarations
allow the board to make such repairs and assess the unit
owner affected thereby the cost.

Publication date: Jul 6, 2014

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  There have been quite a few Illinois legislative, judicial
and executive developments affecting condominium
associations recently. Part one is below, and next week's
column will cover additional developments.

Electronic communications to be allowed by the Condominium
Act. Effective Jan. 1, Section 18.4 of the Condominium Act
was amended to permit a condo board of directors to adopt
rules and regulations to allow for electronic delivery of
notices and other communications required by the act if a
unit owner submits an electronic address for such notices.
Not only will this allow for quicker notification and
communication to unit owners, but it will also reduce
mailing costs for associations.

It is recommended that condo boards work with their legal
counsel to draft and adopt a rule allowing for electronic
delivery of notices and other communications and a written
authorization form for unit owners to execute designating an
electronic address.

Governor vetoes Senate Bill 2664 regarding foreclosures.
Senate Bill 2664 was vetoed by Illinois Gov. Pat Quinn in a
nod to condo associations, which vigorously opposed the
legislation, and which would have greatly limited an
association's ability to collect unpaid assessments from a
buyer after a foreclosure. Unexpectedly, the governor
proposed that the Illinois legislature amend the Senate bill
to provide that condo associations be allowed to collect all
assessments, attorneys' fees and costs incurred by the
association in trying to collect the assessment delinquency,
while keeping the nine months' worth of regular assessments
provision (which is an increase from the current six months
of assessments).

The future of this amendment lies with the bill's sponsor,
Sen. Michael Hastings, who can (1) move that the Senate
accept the governor's changes, (2) move that the Senate
override the governor's veto or (3) take no action, which
will keep the current law in place. If the Senate approves
the governor's changes, the House will have the same
options.

If lawmakers approve the governor's changes, the proposed
amendment will become law.

Insurance provisions amended. Effective June 1, Section 12
of the Condominium Act was amended relating to an
association's insurance requirements for the common elements
and limited common elements.

Property insurance coverage must now provide coverage "in a
total amount of not less than the full insurable replacement
costs of the insured property, less deductibles, but
including coverage sufficient to rebuild the insured
property in compliance with building code requirements
subsequent to an insured loss, including: Coverage B,
demolition costs; and Coverage C, increased costs of
construction coverage."

"The combined total of Coverage B and Coverage C shall be no
less than 10 percent of each insured building value, or
$500,000, whichever is less."

Section 12(a)(3)(D) was amended to require that the fidelity
bond for the directors and officers include coverage for
defense of nonmonetary actions, defense of breach of
contract and defense of decisions related to the placement
of adequacy of insurance.

Such fidelity bond insurance must cover past, present and
future board members while acting in their capacity as
members of the board of directors, the managing agent and
employees of the board and the managing agent.

Section 12(h) was amended to eliminate the board's right to
purchase insurance coverage on behalf of a unit as allowed
by rules and regulations adopted by the board regarding
mandatory unit insurance in the event that a unit owner does
not purchase such insurance.

Publication date: Aug 31, 2014

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  Q: Contemporaneous with the turnover of our condominium
board and replacement of our on-site property manager,
certain unit owners and former board members have been
banned from the management office. The banned individuals
have not been subjected to any rule violation hearing. This
action has intimidated other unit owners from contacting the
property manager with their concerns and inquiries. Is the
board acting within its powers?

A: Pursuant to the Condominium Act, the board is granted the
authority to administer the association and common elements,
which may, under appropriate circumstances, warrant
prohibiting unit owners from entering a common element
management office. Such a prohibition almost exclusively
occurs when a property manager is being harassed or
threatened. Most declarations and bylaws contain provisions
that unit owners may not engage in noxious or offensive
activities.

If the unit owners refuse to comply with a directive
prohibiting them from entering the management office, the
unit owners may be subject to applicable association
remedies, which could be fines and/or a declaratory lawsuit.

Q: I am the secretary of a self-managed town house
community. It has been our association's policy to not
provide contract purchasers with copies of the minutes of
our association. An attorney is now questioning our policy.
Are we required to supply board meeting minutes requested by
a purchaser's attorney?

A: Noncondominium community associations are governed by the
Common Interest Community Association Act. Section 1-30(i)
of the act requires the board to make available to its
owners for examination and copying board meeting minutes for
the last seven years.

Thus, while the board is not required to provide meeting
minutes to prospective purchasers directly, the board is
required to deliver copies of board meeting minutes to the
selling owner, who would then deliver such minutes to their
contract purchasers. In the spirit of cooperation with
individuals who will become owners, the board might want to
reconsider its policy.

Q: Is a petition signed by at least 20 percent of
condominium unit owners sufficient to terminate the
management company of the association?

A: A petition signed by at least 20 percent of the unit
owners has no authority or weight regarding the goal of
terminating a management company. Per Section 18(b)(5) of
the Condominium Act, a petition signed by at least 20
percent of the unit owners may call a special meeting of the
owners, but any resolutions adopted at such meeting cannot
bind or mandate a board to act.

Pursuant to the association's bylaws, and Section 18.4 of
the Condominium Act, the board of directors is granted the
authority to administer the association and make governing
decisions.

Further, even if the board were to support terminating its
management company, the association is subject to the
termination provisions of the management agreement. An
unauthorized termination will subject the association to
liability.

Publication date: Jul 20, 2014

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  Q: I live in a high-rise condominium building, and
recently, a no-gun sign was posted in the entry lobby window
of the building.

Does the posting of the sign require board approval, and how
does this affect residents' ability to keep a concealed
weapon in their units?

A: Pursuant to the Firearm Concealed Carry Act, a property
owner may post a specific design of a no-gun sign at the
building entrance. In a condominium context, the board of
directors must approve such sign posting and adopt
applicable rules.

The Concealed Carry Act expressly allows residents with
concealed carry licenses to store a firearm in their homes
and vehicles. Thus, in a condominium context, the
association cannot prohibit residents with concealed carry
licenses from using the lobby or hallways to take a
concealed firearm directly to or from their units.

Even so, an association can prohibit firearms in common
element amenities or at association events.

Q: Our condominium association was sued by an individual who
slipped and injured herself on our common elements. Our
association has general liability insurance coverage, but an
insurance deductible must be paid.

Can the board pay the insurance deductible with reserve
funds?

A: Section 9(c) of the Condominium Act requires budgets to
provide for reasonable reserves for capital expenditures and
repair or replacement of the common elements.

If the condominium declaration or bylaws mirror such
restrictive language on the use of reserve funds, the board
may not use the funds to pay the insurance deductible.

Even so, many declarations provide for broader use of
reserve funds, including unexpected contingencies, in which
case the board may be able to use reserve funds to pay the
insurance deductible.

The board may always pay the insurance deductible from the
operating account without question.

Q: In my condominium association, the declaration restricts
ownership of garage units to ownership of a residential unit
in the association.

Several years ago, a residential unit owner sold his
residential unit and kept title to his garage unit so he has
a place to park in the city.

Can the board force the unit owner to sell the garage unit?

A: Provisions in a condominium declaration that restrict
ownership of garage units to owners of residential units are
valid and enforceable.

The association board should send a demand to the unit owner
to sell the garage unit to a residential unit owner within a
reasonable time.

If the garage unit owner refuses to do so, the board may
file a declaratory lawsuit seeking a court order to force
the sale of the garage unit.

Pursuant to Section 9.2 of the Condominium Act, the unit
owner will be responsible for the association's legal fees
and costs when the association prevails in the litigation.

Publication date: Oct 5, 2014

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  Q: I am on the board of a condominium association. A unit
owner fell asleep while filling his bathtub, and the water
poured over, damaging his unit only.

The unit owner claims his homeowners insurance carrier will
not cover his negligence and is demanding the association
submit a claim to its insurance policy and pay the damages.
Must the association comply?

A: Unit owners are responsible for damage to units and
common elements that arises from the use and operation of
their units regardless of negligence per Section 9.1(a) of
the Condominium Act.

Pursuant to Section 12 of the Condominium Act, the
association's insurance policy is the primary insurance
policy. Even so, pursuant to Section 12(c) of the
Condominium Act, the board may assess, as a fine, the
association's insurance deductible against the unit owner
who caused the damage. Thus, if the damage amount is less
than the deductible, the unit owner is responsible for
paying; and if the damage is more than the deductible, the
association's policy should cover the casualty loss.

But the unit owner will be liable for the full policy
deductible.

Q: I sit on a town house community association board. I am
aware that for condominium associations, unit owners are
entitled to attend board meetings but do not have the right
to speak at the meeting. Does that rule apply for community
associations?

A: Pursuant to Section 1-40 of the Common Interest Community
Association Act, owners in a community association are also
entitled to attend the open portion of board meetings to
observe, but they may not disrupt or speak while the board
is conducting business.

Even so, unlike the requirements in the Condominium Act,
Section 1-40 of the common interest act requires that
community association boards reserve a portion of the board
meeting for comments by owners. The duration of the owner
comment session, and when it occurs during the board
meeting, is within the sole discretion of the board.

Q: Lenders for condominium unit buyers commonly ask the
association to provide them with the percentage of the units
that are owner/rental occupied.

Should the answer to that question be based on the addition
of all the rented units' percentage in the common elements
or the number of units leased divided by the total number of
units?

A: Lender questionnaires for contract buyers of condominium
units request the percentage of unit owner/rental occupancy
as part of the lender's risk assessment for the loan. The
proper method to calculate such a percentage for that
purpose is to divide the number of leased units by the total
number of units.

Publication date: Nov 9, 2014

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  Q: My neighbor expanded his deck significantly into the
common areas without asking permission from anyone, then
went to the village and got village approval for his deck
expansion in an attempt to validate his actions.

Neither the homeowners association board nor the owners ever
approved this taking of the common areas.

Does village approval somehow validate the owner's actions?

A: In a community association, an owner may not expand his
or her home or deck into the common areas without board
consent and, depending on the specific facts and governing
documents, possibly owner approval.

Even in a situation where owners get village approval to
modify their home, the owners' property is still subject to
the declaration of covenants recorded against the property
and all of its restrictions.

Q: I am on the board of my homeowners association. We are
concerned about the conduct of our property management
company. Our managing agent has ignored board directions in
the past, and the most recent occurrence was issuing a check
to a party after the board expressly directed the managing
agent not to do so (there was a dispute as to what money was
owed, if any).

Do we have recourse against the managing agent under the
manager licensing act?

A: The property management agreement governs the legal
relationship between an association and the property
management company. The agreement outlines the scope of
manager responsibilities and its authority.

If the managing agent has repeatedly breached the terms of
the management agreement, the association would be entitled
to terminate the agreement "for cause" because of the
breaches.

The Illinois Community Association Manager Licensing and
Disciplinary Act, which regulates the licenses of community
association managers and management companies, does not
contain remedies for community associations in cases of
alleged breaches of a management agreement.

Nonetheless, the manager licensing act provides guidelines
and standards for association managers to conduct
themselves, and managers could be subject to disciplinary
proceedings for improper conduct or noncompliance with the
manager licensing act.

The Illinois Department of Financial and Professional
Regulation handles complaints regarding the licensure of
community association managers.

Industry seminar. From time to time, various condominium and
community association organizations host yearly trade shows
and seminars that are open to industry professionals and the
public.

The annual Condo Lifestyles State of the Industry seminar
and luncheon will be held from 11 a.m. to 3 p.m. Dec. 11 at
the Chicago Cultural Center, 78 E. Washington St.

Seminar sessions will explore a variety of topics, including
legal and case law updates, the impact of the Palm II court
case, property tax appeals and managing renters.

For more information, call 630-202-3006.

Publication date: Nov 16, 2014

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  Q: Our condominium board has proposed an amendment to our
declaration to shift the maintenance, repair and replacement
costs of limited common elements to an association expense
instead of a unit owner cost as it now states.

This would mean that units with larger and multiple windows
and balconies would benefit from not paying the actual costs
of repairs to which they get a full benefit. Certain board
members would benefit from this amendment. Is this legal?

A: Condominium declarations and bylaws are commonly referred
to as living documents, meaning there are procedures for the
unit owners to amend the documents.

With the requisite unit owner approval, and sometimes
mortgagee approval, the declaration and bylaws may be
amended by the will of the supermajority.

Section 27 of the Condominium Act requires no less than two-
thirds and no more than three-fourths unit owner approval to
amend the declaration and bylaws.

Though the rationale for the proposed declaration amendment
may not be equitable, there is nothing legally improper
about the amendment being proposed to the unit owners.

Should the requisite unit owners approve the amendment, it
would be valid and enforceable.

Q: The board of my small condominium association has
proposed new rules and that will apply only to investor-
owned units.

Specifically, unit owners are allowed pets, but renters are
prohibited from having pets in a unit, and investor-owned
units must install wall-to-wall carpet, whereas owner-
occupied units are allowed hardwood floors. Are these rules
enforceable?

A: A condominium board may not adopt rules that treat
investor-owned units differently from owner-occupied units.

Rules must be applied uniformly. Section 18(b)(2) of the
Condominium Act states that an association shall have one
class of ownership, and rules targeting only specific units
would violate that requirement.

Q: I live in a large high-rise condominium building in
Chicago.

A unit owner was fined by the board for spitting in the
elevator, which was captured by video surveillance. Am I
entitled to view the video or a copy of the video?

A: Section 19 of the Condominium Act governs unit owner
rights to inspect certain records of the association.

The categories of records are listed in Section 19(a) of the
Condominium Act and relate, in sum, to business and
financial records.

Unit owners are not entitled to inspect evidence used in a
disciplinary hearing of another unit owner.

Further, absent a legal order for the association to produce
video surveillance, unit owners are not entitled to view or
get a copy of video surveillance in the association
regardless of the reason for the request.

Publication date: Dec 21, 2014

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  Q. My husband and I live in a 55-and-older housing
community association. The board has adopted a new rule to
closely monitor and enforce age compliance for the senior
housing. Our 45-year-old adult son lives with us and plans
to live here after our deaths. Is our son able to live in
our unit after we have passed away if he is under 55?

A. Fifty-five-and-older communities are governed by the
Federal Fair Housing Act and Housing for Older Persons Act,
which are federal statutes. Under the statutes, at least 80
percent of occupied units must be occupied by at least one
person 55 or older. The governing documents of a particular
senior housing association may allow a certain percentage of
units to house people under 55, and the community will still
qualify as a 55-and-older senior housing community.

The right to possession by an heir or surviving spouse under
55 is a matter of state and local law and the governing
documents of the specific community association. Most
commonly, an heir or spouse under 55 should be able to
remain in the unit; however, the legal answer to the
question is specified by governing documents.

Q. I live in a condominium association that is 35 years old.
I barely have any hot-water pressure in one bathroom. The
board advised me I must pay to have the pipes rodded-out by
a plumber to increase the water pressure. Why must I pay?

A. The responsibility of whether the association or an owner
must pay for low water pressure depends on the source of the
problem. If the source of low water pressure is an
improperly working common-element component (booster pump or
clogged common element pipe, for example), the association
is responsible to maintain and repair such a component
because it is part of the common elements.

However, if the low water pressure is caused by a clogged
limited common element pipe serving exclusively a single
unit, and the governing documents state that unit owners are
responsible for the maintenance, repair and replacement of
limited common elements, the unit owner would be responsible
for the cost to rod out the limited common element pipe.

Q. I live in a condominium association with an owner who is
vehemently opposed to professional management of the
association and makes periodic burdensome requests for
inspection and copies of accounting books and records of the
association. The latest request was a verbal demand to
receive salary information for our property manager, who
died two years ago. Is he entitled to such information?

A. Section 19 of the Condominium Act governs a unit owner's
request for documents and information, and if the property
is in Chicago, the Chicago Condominium Ordinance also
applies.

Under both statutes, a unit owner is entitled to inspect
books and records of account for the current and 10
immediately preceding fiscal years; however, such requests
must be in writing and must state a proper purpose. A recent
court case held the Chicago Condominium Ordinance requires a
proper purpose even though it is not expressly stated in the
statute.

If a request to inspect books and records of account for the
last 10 years is in writing and states a proper purpose, a
unit owner may review detailed accounting records and
receipts, which would include salary of the property manager
within the last 10 years.

It should be noted that a verbal request and/or a written
request without a proper purpose does not entitle a unit
owner to inspect accounting records that would include
salary information of a property manager.

Publication date: Feb 15, 2015

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  Q: I live in a condominium and feel our board of directors
does not act in the unit owners' best interest.

Is there a bill of rights for condominium unit owners that
describes what rights we have?

A: There is no such document outlining the rights of unit
owners in a condominium association.

But, in addition to any rights specifically discussed in a
condominium association's governing documents, the
Condominium Act is filled with rights granted to unit
owners.

The rights of unit owners are primarily contained in
Sections 18 and 19 of the Condominium Act.

Such rights include, but are not limited to, receiving a
copy of the annual budget before adoption; receiving an
annual accounting after the fiscal year; the right to attend
board meetings; the right to inspect certain documents,
books and records of account; the right to challenge annual
budget increases over 15 percent or special assessments if
more than 115 percent over the previous year's total
assessments, except in the case of expenditures for
emergencies or mandated by law; and the right to challenge
the cost for improvements in quality of common element
repairs and replacements if the improvement aspect of the
expenditure exceeds 5 percent of the annual budget.

Q: When my condominium association was created, all deeded
parking units were used as single-car parking spaces.

Over the last 10 years, more and more unit owners have been
using them as tandem parking spaces for two cars. The
declaration is silent on the number of cars that may be
parked in a parking unit.

How should this issue be handled?

A: The use of parking units is governed not only by the
condominium declaration, but also by boundaries identified
in the plat of survey attached to the declaration and
applicable law regarding the minimum dimensions to be
considered a valid parking unit. All of the documents must
be analyzed together.

The subjective understanding by a unit owner of a belief of
what he or she bought is not what governs.

The actual use of the parking unit is limited by what the
governing documents and applicable law provide.

Q: I am the board president of a small, walk-up condominium
building. Over the past several months, the second-floor
unit owner has experienced a small amount of water leaking
from the third-floor unit owner. The exact location of the
water leak has not been pinpointed yet.

What responsibility does the board have to make sure this
matter is resolved?

A: The board has a vital interest in ensuring that an
ongoing water leak in the building is addressed and abated.

Though the damage to the interior of the second-floor unit
may be an issue between the two unit owners, a continuing
water leak could damage the common elements between the two
floors or result in mold in the building if left unabated,
which becomes a building issue. Further, the board has the
authority to enter units to protect them and the common
elements under Section 18 of the Condominium Act.

ctc-realestate@tribune.com

Illustration Caption: Photo: The Condominium Act guarantees
unit owners the right to receive a copy of the annual budget
before adoption and to challenge increases over 15 percent.
Owners also have the right to inspect certain documents and
records of account. ISTOCKPHOTO

Publication date: Mar 8, 2015

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  Q: I'm a member of a condominium association and our
management company has started to email notices of board
meetings instead of using postal mail.

In reviewing the Condominium Act, I see it states notices of
board meetings shall be mailed or delivered to unit owners.
Are email notices allowed under condominium law?

A: Effective Jan. 1, the Condominium Act was amended by
adding Section 18.4(s), which allows condominium boards to
adopt rules for sending electronic notices if unit owners
opt in to receive such notices.

If a condominium association begins emailing official
notices without adopting appropriate rules or before a unit
owner opts in to such a program, the delivery of such
electronic messages would not be proper notice of board
meetings under the Condominium Act.

Q: I'm a member of a condominium association in the suburbs,
and we are on our fourth management company in the last four
years.

Our current property manager is on-site only once every two
weeks, and responding to phone messages routinely takes
several days.

The board appears indifferent to these issues. What can I
do?

A: A management contract governs the relationship between a
management company and a condominium association. The
contract sets forth the management company's scope of work.

For a small to midsize condominium association, it is not
unreasonable to have off-site property management where the
manager might only occasionally visit the property.

Still, the board should not accept routine unresponsiveness.

The first step is to discuss the issues with other unit
owners to see if others agree with your perceptions. If so,
the unit owners should attend board meetings and relay these
concerns to the board, and the board should address these
issues with the management company.

If the board will not champion this issue, the last resort
is to elect unit owners who share your views to the board at
the next annual meeting.

Q: I live in a vintage condominium building along Chicago's
lakefront. The units in our association receive hot water
from three water heaters in the basement utility room. If a
single water heater fails, the other heaters can pick up the
slack until it is repaired.

A few weeks ago, one of the water heaters failed, and the
board decided to defer the repairs on that heater until a
second one fails.

In my opinion, if a second water heater fails, that will
leave insufficient hot water for the building. Isn't the
board required to use the reserve funds to replace the
failed water heater as soon as possible?

A: The Condominium Act and condominium declarations and
bylaws grant boards broad authority to administer the common
elements in their discretion.

Boards operate under the business judgment rule, which means
they must act in a reasonable manner in fulfilling their
fiduciary obligations. What is reasonable is defined by the
specific facts of a situation.

On occasion, boards defer repairs or maintenance based on
financial issues or the priority of other projects.

If the board's decision in this case is based on the fact
that the remaining water heaters could provide enough hot
water until a repair is made, deferred repairs may be
reasonable.

On the other hand, if a single water heater is insufficient
to provide hot water to all units, then a more prudent
approach will be for the board to address necessary repairs
for the failed water heater before a second one fails.

Publication date: May 17, 2015

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  Q. I live in a condominium association, and one of the
board members is suing our condominium association and the
management company for personal injuries that occurred on
association property. It seems to me that a board member
suing their association presents a conflict of interest and
should not be serving on the board. Is there a true conflict
here?

A. While it is not an ideal situation for a board member to
be suing the association to which they are serving on the
board, there is no legal conflict of interest that prevents
the board member from continuing to serve on the board.

Board members have fiduciary obligations to serve and act in
the best interest of the unit owners. Suing the association
for recovery of personal injury damages does not mean that
such person is unable or unwilling to fulfill their
fiduciary obligations to enforce the association's governing
documents and act in an appropriate manner to administer the
common elements.

Whether the unit owners support or oppose this board member
in the context of suing the association will likely be borne
out at the annual meeting when his or her term expires.

Q. My husband and I are in the process of purchasing a
condominium unit and have just received various condominium
disclosure documents. In those documents, we learned that
the unit we are interested in purchasing had major water
damage in the past that "may or may not result in a special
assessment" to repair the common elements, neither fact of
which was revealed by the seller. Past board meeting minutes
do not reference any issues regarding the unit. Do you have
any insight?

A. The board of directors is responsible to maintain, repair
and replace the common elements, which includes preventing
water infiltration from the exterior of the building into
units. To the extent capital expenditures are required to
address repairs and maintenance of the exterior, it is
required for the board of directors to disclose any such
planned expenditures for the current and succeeding two
years pursuant to Section 22.1 of the Condominium Act.

It is not appropriate for the seller to make representations
on behalf of the board, because the seller would not have
the requisite knowledge of what the board intends to do. A
seller is required by law to disclose ongoing water
infiltration in their condominium unit.

Board meeting minutes reflect the decisions of the board at
properly called board meetings, not the issues and concerns
of unit owners or references to water damages in a
particular unit.

As with most things, caveat emptor -- buyer beware. All real
estate buyers should do reasonable due diligence before
purchasing.

Q. I live in a Chicago condominium that abuts an alley where
garbage bins are located for the various property owners.
For many years, some of the property owners have garbage
overflowing in their bins, which attracts undesirable
animals. What can be done to force property owners to take
care of their problem?

A. Chicago Municipal Code requires that garbage bins not be
overflowing with garbage. If a letter to the property owner
does not result in the appropriate use of garbage in bins,
property owners may contact the city of Chicago Department
of Buildings and lodge a complaint for a building code
violation that the city should investigate.

If, in fact, the garbage violates the applicable provisions
of the Chicago Municipal Code, the property owner will be
cited for a building code violation, which will require
appearance at an administrative hearing and, hopefully,
entice the property owner to future compliance to avoid
possible fines and court costs. If not, repeat the
complaints to the city of Chicago.

Publication date: Jul 19, 2015