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posted: 10/6/2012 5:27 AM

Election time prompts many questions about assciation boards

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It is annual meeting time of year in many associations, so I have compiled a list of questions related to annual elections.

Q. I am married; however, the deed to my condominium unit in Illinois is in my name only. The declaration for our association says a board member can be an owner or a spouse of an owner. My spouse wants to run for the board and is now being told she is not eligible. Can my spouse, who is not an owner, run for the board?

A. Your spouse may not run for nor serve on the board, despite the language in the declaration to the contrary. Board members are elected from among the unit owners. Your spouse is not a unit owner. Action taken by a board comprised of ineligible members may be invalid, and an ineligible board member might not be covered under the association's director's and officer's liability insurance.

Q. The annual meeting for our association is coming up shortly. In prior years, we have solicited candidates and held elections, only to learn later that a person "elected" to the board was not an owner. How can we avoid this problem in the future?

A. Once the board has the names of the known candidates for the board, the association should have its attorney obtain an ownership search for each of the candidates' units. The ownership search will identify the owner of record. If the unit is owned by an individual or individuals, the board will quickly know whether the candidate is eligible. If the owner search indicates that the owner of record is a trust, then the trustee or the beneficiary of the trust may be eligible. The board could require the candidate under this circumstance to provide documents from the trust identifying the current beneficiary.

Many associations try and shortcut the process by obtaining taxpayer of record information from the county treasurer. The tax payer of record is not necessarily the same as the owner of record.

Q. I am a candidate for election to the board of my association. I don't necessarily trust the people who will be tabulating the votes. Do I have a right to count the votes at the annual meeting?

A. A candidate for election to the board of a condominium or common interest community association or such candidate's representative has the right to be present at the counting of ballots at such election. However, the candidate or the candidate's representative does not have a right to actually tabulate the vote. The vote should not be tabulated by anyone who is a candidate.

Q. The candidate form issued by the board does not inquire as to the position for which a candidate is running. I want to run for president of my association. Should the candidate form solicit this information?

A. Candidates to the board do not run for a particular officer position; they run for the board. Owners vote for board members, and not the officers of the board. Once the board is elected, the board members will vote among themselves to decide who will be the president, secretary and treasurer. While a candidate form could inquire as to what officer position, if any, the candidate may have qualifications for, the form should not ask for what position the candidate is running.

Q. What is a good way to introduce candidates to the unit owners before the owners vote at the annual meeting?

A. The solicitation for candidates should include questions describing the candidate's experiences and qualifications for the board. The completed forms should then be provided to the owners with the notice of the annual meeting. This will give the owners some general information about the candidates.

This should be supplemented by either a "meet the candidates night" sometime before the annual meeting or by a candidate's forum at the annual meeting before owners cast their ballots. The candidate's forum at the annual meeting will permit owners nominated from the floor to participate as well. Each candidate should be given a set amount of time (a couple of minutes is usually plenty) to speak of their qualifications. The time should not be spent complaining about the board or management.

Q. Ours is a rather large association that conducts election by mail-in ballot. Owners mail their completed ballots to the association's accountant, who tabulates the vote and announces the result at the annual meeting. Shouldn't the votes be counted at the annual meeting?

A. Voting takes place at the annual meeting whether by mail-in ballot or in person. The votes should not be tabulated before the annual meeting.

• 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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