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posted: 6/30/2012 4:34 AM

How to handle residents who misuse guest parking spaces

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Q. We are a townhouse association in the Northwest suburbs. The association is comprised of multiple buildings in five cul-de-sacs. About a quarter of the units in these cul-de-sacs have a one-car garage, the balance of the units have a two-car garage. There are a limited number of guest parking spaces in the cul-de-sacs.

We have a problem with owners of units with a one-car garage who have two cars. They have a tendency to park one of their cars in a guest parking space; either because their garage is filled with personal property, or because they park one car in the garage and it is inconvenient to move a car from their driveway to get a car out of the garage.

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We do not want to tow vehicles because of the unsightly required signage. What can our association do to address this misuse of the guest parking spaces?

A. The board needs to adopt specific and detailed rules concerning the use of the guest parking spaces. The rules should indicate which parking spaces are for use by guests and not for use by residents. Owners should be required to "register" their vehicles with the association, so it can more easily identify the owner of a vehicle parked in violation of the rules. The rules should include a significant fine for violation of the guest parking rules, and should provide for escalating fines for repeat violations, and a daily fine for a violation of a continuing nature. The prospect of a fine should deter residents from parking in guest parking spots.

However, a resident who witnesses another resident parking in violation of the rules should make a written complaint with the association, including the appropriate details (who was driving the vehicle, what they saw, identify the vehicle, where this occurred, when this occurred, and take a picture if possible). Then, when a violation is reported, the board can levy a fine, after it has issued the offending resident written notice of the violation and an opportunity for a hearing.

An association can also enter into an agreement with the local municipality to permit law enforcement to issue citations for violation of association parking rules. Search for my Dec. 31, 2011 column where this was addressed in detail.

You mention towing of vehicles. Towing of resident vehicles for a violation of a parking rule is not necessarily permitted without first providing the resident written notice of the violation and an opportunity for a hearing. That said, it could be appropriate to tow a vehicle, without such notice/hearing, if the vehicle is blocking traffic or is parked in a fire lane, for example. And, as you mention, appropriate signage generally needs to be displayed where vehicles may be towed.

Q. Our declaration provides that after the conveyance of any dwelling unit to a homeowner, the declaration may be amended only by the affirmative vote of owners having 67 percent of the total vote in the association.

Our board has announced it intends to amend this provision to permit an amendment to the declaration by the affirmative vote of 67 percent of owners present, and voting at a meeting when a quorum exists (rather than by 67 percent of the entire association).

Can this change to the amendment provision of our declaration be made without the affirmative vote of owners having 67 percent of the total vote in the association?

A. No, an amendment to the amendment provision of the declaration requires the approval of the requisite number of owners set forth in the original provision of the declaration concerning amendments. In your case, the affirmative vote of owners having 67 percent of the total vote in the association will be required to amend the amendment procedure. Of course, owners can vote in person or by proxy when an amendment requires the vote of owners at a meeting.

Q. I live in a townhouse complex. No one at the board meetings is taking minutes and minutes of board meetings are not prepared or maintained. Is an association required to maintain minutes of board meetings?

A. It is fundamental corporate law that board action be memorialized in minutes of its meetings. The failure of the board to prepare and maintain minutes exposes the board and association to liability, and is a breach of the board members' fiduciary duty. The statutes that govern Illinois condominium associations, master associations and common interest community associations require minutes of board meetings to be available for inspection and copying by owners.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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