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posted: 10/13/2012 4:36 AM

Finding association board members can be a struggle

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Q. I am the president of a nonprofit townhouse owners association. We have been struggling to get owners to serve on the board. Our governing documents require us to have a seven-person board. We currently have three board members.

Our governing documents also provide that we need to have a majority of the board present at a meeting to constitute a quorum. My understanding is that our three board members is less than a quorum, and that we can't even conduct business. Am I correct? Can the state step in and appoint a '"conservator" to run the association?

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A. The association's declaration provides that a majority of the board shall constitute a quorum. The quorum is based on the number of actual board members, not on the number of board members called for in the declaration. A quorum of the three sitting board members is two.

An Illinois nonprofit corporation needs to have a minimum of three board members. The association currently meets that minimum requirement. If an association has no owners willing to serve on the board, the state does not step in to appoint a party to operate the association. Rather, if there are no board members, an owner would have to file suit to have a court appoint a receiver to operate the association.

Often, that receiver would be an attorney who would charge the association their hourly rate to operate the association. That can become prohibitively expensive very quickly.

The association should strive to fill all seven of the board positions, and the board needs to actively solicit interest among the owners to run for and serve on the board. The association should also consider amending the governing documents to reduce the number of board members to five, or even to three.

Q. I have inherited a townhouse in a condominium association with a total ban on leasing. Unfortunately, in this market, no units in the association are selling. The building in which my townhouse unit is located is Federal Housing Administration-certified. However, not all buildings in the association are FHA-certified. I read in your column that associations with a total ban on leasing are at risk for rejection for FHA certification.

How can some buildings in an association receive FHA certification but not other buildings? How could FHA certification been obtained if there is a total ban on leasing?

A. An association as an entity obtains FHA certification. I do not know how some buildings are certified and others are not if they are in the same condominium association. Are you sure all of the buildings are in a single association?

There exists any number of developments composed of scores of buildings, each of which is created as its own condominium association. The development is then served by a master association. It is possible that is how your property has been developed, and would explain why some, but not all, buildings are FHA-certified.

FHA certification for an association with a total ban on leasing might have been obtained before the Department of Housing and Urban Development's recent interpretation of its regulations; an interpretation that prohibits a total ban on leasing. Unless HUD revises its current interpretation of its regulations, the association with a total ban on leasing will have an issue obtaining FHA recertification when that time comes.

Q. We own a condominium unit that is assigned a limited common element parking space. The owner with the parking space next to mine has a huge SUV. Because the parking spaces are so tight, if I park next to him and there is another owner parked in the space on the other side of my car, it's difficult enough to get into the space but I cannot open my vehicle doors. I actually have to climb through my car and exit through the rear lift gate of my SUV. Is there anything that the association can do to help me or cause him to move this oversize vehicle from the parking area?

A. There are several issues that should be investigated. Is there any restriction in the declaration that prohibits the size of the vehicle at issue? Does the vehicle extend beyond the parking spaces? If the answer to either is yes, the board can require that the vehicle be removed from the property.

Does the width of the spaces meet the requirements of the local building code? If not, the association is going to have to consider conforming the size of the spaces to the code.

An alternative for you would be to find an owner of a smaller vehicle who might be willing to exchange parking spaces with you. This would require a relatively simple amendment to the declaration; requiring approval only by the owners of the two limited common element parking spaces.

• 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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