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posted: 8/11/2012 5:46 AM

Condo boards can require maintenance checks in units

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Q. Our condominium board of managers is interested in making sure our residents keep their individual air conditioners and furnaces, located in their units, in safe running condition. We are considering hiring a company that would perform yearly checks on all of the units in our building and are considering adding the charge to the owners' monthly assessment fees. Is this a something that we can legally require our residents to do?

A. The board is responsible for maintenance, repair and replacement of the common elements, and the HVAC system in and serving individual units can have an impact on the common elements and other units. The board also has a right of access to each unit from time to time as may be necessary for maintenance, repair and replacement of the common elements. Moreover, the board has the power to adopt rules covering the details of the use an operation of the property, and this would include the individual units.

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Viewing this all together rather aggressively, the board could hire a contractor to perform inspections of the HVAC systems within individual units. The cost of these inspections should be included as a line item in the budget and allocated among all of the owners based on their percentage of ownership.

Where an inspection reveals that the HVAC system requires repair, the owner could be required to engage the contractor directly to perform the repairs at the owner's expense. This is less cumbersome than the association performing the repairs and trying to collect the cost from the owner. If the owner fails or refuses, there are remedies (like levying a fine) available to the board.

Q. We are a homeowners association comprised of single-family homes. Where are we required to post notice of board meetings?

A. If a condominium, homeowners association or common interest community association does not have building entranceways or elevators, copies of notices of meetings of the board can be posted in other conspicuous places in proximity to the homes at least 48 hours prior to the meeting of the board. My association of single-family homes posts notice of board meetings by way of "lawn signs" at the two entrances to our subdivision.

Q. Turnover of control of our association from the developer to the unit owners took place recently. As part of the process, the board reviewed the current contracts for the association, and this reveals that the developer entered into several long-term contracts on behalf of the association. These contracts are for services the board doesn't think the association needs or the board can obtain similar services for less money. Can the association terminate these contracts?

A. Illinois condominium associations, master associations and common interest community associations all have the ability to terminate certain long-term contracts the developer entered into, on behalf of the association, before turnover.

After turnover, any contract made prior to the date of turnover (which is the election of the first unit owner board) that extends for a period of more than two years from the date of the election, is subject to cancellation. However, the board alone cannot make this decision. Rather, the termination must be approved by a majority of the votes of the unit owners other than the developer cast at a special meeting of members called for that purpose. This vote must take place during the 180-day period that begins on the date of turnover. If approved by the owners, the cancellation is effective 30 days after mailing notice by certified mail, return receipt requested, to the last known address of the other parties to the contract. Given the potential for a challenge from the party whose contract is being terminated, and the procedural hurdles, the board should speak with association counsel about the details of the contract-termination process.

Q. There were four candidates for three seats on the board of directors of our association at the last election. There was a tie vote between two candidates for the last seat on the board. How should we have resolved who was elected to this seat?

A. There are a few ways to deal with this -- a duel at ten paces is not one of them. First, one of two candidates who tied for the seat could concede the position to the other. Or, the two who tied could agree to resolve the tie by a "coin flip" or other similar game of chance. Failing this, a meeting of the owners could be held to conduct a runoff election between the two candidates who tied for the seat. This is one of those situations that should be addressed in the association's election procedures.

• 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 associations. This column is not a substitute for consultation with legal counsel.

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