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posted: 7/28/2012 5:00 AM

Associations can set community standards for radon mitigation

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Q. A recent inspection of my unit indicates that radon is entering through the concrete floor my first floor unit. Who is responsible for installing a radon mitigation system for my unit?

A. Radon is naturally occurring and may enter into a unit even in the absence of a defect or failure in the common elements. Therefore, in general, the unit owner is responsible, at the owner's expense, to install and pay for a radon mitigation system for their individual unit. Radon mitigation techniques often involve the installation of equipment that vents radon gas through pipes to the exterior of the unit. These pipes most often run on the exterior of a building, but they can run through the interior of the unit and exit through the roof. Therefore, the association has a role in the mitigation process.

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The typical association's governing documents prohibit an owner from making any addition or alteration to the exterior of the unit without the prior approval of the association. A provision of this sort would require the owner to obtain the approval of the board of the association to install a radon mitigation system on any portion of the exterior of the building.

If radon is detected in a unit in excess of acceptable levels, a request for approval to install a radon mitigation system should only be denied by the association if the system would not conform to federal/state regulations, or if the work is proposed to be performed by a nonlicensed mitigation contractor.

The board can require owners to submit detailed plans of the proposed mitigation system for its review and consideration, and to condition its approval on a variety of criteria. For example, the association can require that a professional, licensed radon mitigation contractor perform the work in conformity with applicable federal and state guidelines. The board can also prohibit roof penetrations (where there is an alternative) and can require camouflaging of the vent pipe with a decorative chase that covers a radon vent pipe and blends with the exterior materials of the building. The association can require the unit owner to be responsible for the maintenance, repair, and replacement of the radon mitigation system.

Working together, a unit owner and board can balance the interest of the unit owner to resolve a radon issue with the interest of the board in minimizing the aesthetic impact of the means required to accomplish the mitigation.

Q. What is the difference between noncumulative voting and cumulative voting in an election for members to the board of an association?

A. Initially, voting in a board election is by noncumulative voting unless the declaration or bylaws provide otherwise. In noncumulative voting, an owner has one vote per candidate for each of the seats on the board to be filled at the election. For example, if the election is for three board members, the owner can cast one vote for each of three different candidates.

Cumulative voting is intended to permit a minority of the owners to elect a member to the board by using the power of cumulative voting. In cumulative voting, an owner can cast a total number of votes that is equal to the number of board seats to be filled at the election. The owner can cast those votes in any manner they wish among the candidates. However, owners must use whole numbers. For example, if there are three open seats on the board, the owner may cast all three of their votes for one candidate, or they may distribute their three votes among the candidates in any proportion they deem fit. If there are three seats to be filled, the owner could cast three votes for one candidate and no votes for the other candidates; or two votes for one candidate and one vote for another candidate; or one vote for each of three different candidates. You can see how cumulative voting can be used to lawfully "stack" voting for a candidate or candidates.

In a condominium, each owner's vote would also be weighted by their percentage of ownership in the common elements.

Q. Can the board of our association charge a fee to owners who have a dog? The fee is intended to pay for the maintenance and clean up of a dog run.

A. This issue has not yet been addressed by the Illinois appellate courts, so the answer is not settled. However, charging a fee to one group of owners and not to another group of owners arguably creates classes of ownership. Condominium associations and common interest community associations are generally not permitted to establish classes of ownership. That said, the declaration of a common interest association can provide for classes of ownership, so the declaration for a common interest community association would have to be reviewed to determine if classes of membership are permitted. Many associations charge questionable fees to owners. However, unless and until challenged and set aside by a court, boards often make a business decision to charge such fees notwithstanding the potential for a successful legal challenge.

• 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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