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posted: 1/26/2013 5:12 AM

Fines are 'reasonable' when in line with others

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Q. The board of our association is in the process of updating our rules. One of our proposed changes would increase the fine of someone who parks in a handicapped space without the required state permit (plate or hangtag) to $250. This will be identical to the state penalty for doing this. We feel this is important to convey that these spaces need to be left open for people who truly need them. We have been told that our fine proposal of $250 may be too steep and if challenged in court it may not be upheld. What are your thoughts on this?

A. A fine must be "reasonable." Illinois statutes and case law do not provide any more detailed guidance. I generally advise associations to establish fines in amounts that are similar to the fines for similar violations of municipal ordinances. It appears that your association has done so, and I suspect the amount of the fine has an excellent chance of being upheld by a court if challenged. And I don't have a high confidence level that a person who parks in a handicap parking space without authority is going to garner much sympathy from the courts.

Q. Our association has a right of first refusal in the event of a sale of a condominium. A prospective purchaser's mortgage would be guaranteed by FHA. The board wants to exercise the association's right of first refusal for this reason. Is this lawful?

A. No. In the event of a sale of a condominium by a unit owner, an association may not exercise any right of first refusal on the basis that the purchaser's financing is guaranteed by the Federal Housing Authority. In general though, an association can exercise its right of first refusal for any reason, as long as it is not for an unlawful reason. Examples of unlawful reasons would be discrimination based on race, national origin and family status.

Q. Several unit owners who are involved in litigation against the association have been elected to the association's board. How should the board handle discussions and decisions concerning this litigation?

A. Discussions and decisions concerning the litigation should be among and by the board members who are not suing the association. The board members who are parties to a suit against the association should not be present during, or participate in, any board discussions or decisions concerning the litigation. These discussions should take place in executive session, and these board members excused from the executive session. Participation by these board members would be a conflict of interest and a breach of their fiduciary duty.

Q. I noticed numerous violations of our association's rules during a recent walk through my association. This aggravates me as it appears the board of our association is not doing anything to address rules violations. Shouldn't the board be aware of these violations and take action against these owners?

A. Initially, the board may be taking action to enforce the rules of which you are not personally aware. Next, an association's board does have a fiduciary obligation to enforce known violations of the rules. However, this does not mean the board is required to patrol the association in search of violations. Nonetheless, there are board members who do this. Many associations take action concerning violations of the rules only when another owner complains. That said, if a board member has actual knowledge of a violation, they would generally be required to initiate the rules enforcement process.

Q. An ugly pattern is emerging in our association. An intoxicated former boyfriend of a unit owner in our association attempts to visit the unit owner. The owner doesn't answer the door, and the ex-boyfriend proceeds to kick and damage the unit door, hurl profanities and then leaves. The owner has made it clear to the board that the former boyfriend is not invited. What can we do to keep the former boyfriend of the owner off the property?

A. The potentially simplest and cost effective remedy is to issue a "no trespass" letter to the former boyfriend, and send a copy of the letter to the local police department. The board should also speak to the police, and let them know what the board is doing. In most instances, if called, the police will arrest the former boyfriend for trespass if he ever enters the association once such a letter is issued.

• 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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