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posted: 11/17/2012 4:24 AM

Keep association matters off your employer's email

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Q. Is it a good idea for a board member of an association to communicate about association matters using their employer's email?

A. A board member should generally not communicate about association matters through their employer's email.

Litigation involving associations, whether involving unit owners or others, is seemingly on the rise. During the discovery stage of the litigation, the opposing party will likely ask for copies of all board member emails that are relevant to the litigation. Imagine your employer's reaction when it is served with a subpoena for emails that you sent and received using the employer's email system.

The reaction will be even worse if the emails requested were deleted, as your employer's computer system may be subject to some rather expensive and intrusive recovery techniques.

Emails between a board member and association counsel are typically privileged and not discoverable by an opposing party in litigation. However, since most employers have a policy in place whereby they can view their employee emails, employees should have no expectation of privacy and the attorney-client privilege could be deemed waived by using the employer's email.

To the extent that communications about association matters through email is appropriate, each board member should set up a personal email account exclusively for association business. There are many free email services out there, so this should not be difficult to do.

Creating a personal email address for association business serves multiple purposes. It makes relevant board member records easy to locate in the event the association is required to produce such emails in litigation, and reduces the risk that personal email will be produced. It preserves the attorney-client privilege that is jeopardized by using an employer's email system. It reduces the risk that your employer will get subpoenaed for your email.

Q. Our condominium has a resident who has become disabled after living here for many years. He has requested the board to install a handrail on the common property to enable him to get to his unit. Is the association responsible to pay for this addition?

A. The federal fair housing act requires an association to permit reasonable modifications of common elements, by a disabled resident, if such modifications may be necessary to afford such person full enjoyment of the premises. The modification is to be made at the expense of the disabled resident, not the association.

An association can and should investigate a resident's request for a modification of the common elements. For example, is the resident disabled? Is the modification necessary to afford such person full enjoyment of the premises? These issues may or may not be obvious, depending on the disability. If not obvious, the resident's doctor can provide input. The association should also determine if the requested modification is reasonable. Not all requested modifications are reasonable.

Whether or not an association must permit a disabled person to install a modification to the common elements is to be examined on a case-by-case basis. Note too that the association can require the resident to restore the common elements when the resident moves from the building, if the modification does not provide any benefit to the rest of the building. The association's attorney should be consulted on this complicated fair housing issue.

Q. The streets in our association are privately owned and are quite expensive to maintain and plow. Can an association dedicate its streets to the local municipality?

A. If the municipality agrees, an association can dedicate its private streets to the municipality. Each municipality's requirements are different, so the first step is to have a talk with the manager of the municipality. Fewer municipalities seem willing to accept a dedication of private roads in today's economy. Those municipalities that would accept a dedication generally require the association to first bring the roads up to the municipality's current road requirements. That can often be cost prohibitive. In a condominium, unless the declaration provides for a greater percentage, the decision to dedicate a road requires the affirmative vote of two-thirds of the owners.

Q. The board of our association has a suspicion that the manager of our association does not have a license to act as a community association manager. Is there a way for the board to find out if this person is licensed?

A. The Illinois Department of Financial and Professional Regulation maintains a roster of the names and addresses of all persons who hold a valid license. The board should contact the department to determine if the manager holds a valid license.

• 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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