Attorney represents association board, not the homeowners

Q. I am a unit owner in a homeowner’s association. The association’s attorney attended a board meeting to discuss several issues with the board. During a homeowner’s forum, I asked the attorney a question, but he stated he could not answer it because it would violate the attorney/client privilege. As a member of the association, and as a person who pays assessments that pay the attorney’s fees, wasn’t I entitled to an answer from the attorney?

A. The attorney for the association represents the association through its board of directors; the “control group.” The attorney does not represent individual owners, and the owners are not part of the control group that should include the board and management. In fact the association’s legal interests are frequently adverse to the interests of individual owners. This occurs, for example, when an owner violates the association’s declaration or rules, or doesn’t pay assessments.

Communication between an attorney and the board is covered by the attorney/client privilege. Discussion with the owners about a privileged matter would waive the privilege, and that is seldom a good idea. The attorney was correct in declining to respond to an owner’s question if the subject was protected by the attorney/client privilege.

Q. The tenant of a unit owner of a condominium in our association was clearly captured on a security camera video taking packages of other residents from our mail area. What action can the board take against the tenant?

A. The actions of the tenant can constitute the civil act of “conversion” and the criminal act of “theft.” The board can terminate the lease between the owner and the tenant, on ten days written notice, if the tenant has violated the association’s declaration or rules. The alleged conduct here would violate a commonly found provision of a declaration that prohibits anyone from engaging in noxious or offensive conduct, or conduct that violates the law.

Before issuing the notice of termination of the lease, I would suggest the board provide both the owner and the tenant with written notice of the violation, and provide them with an opportunity for a hearing. If, after the hearing, the board finds the violation did occur, the board could then issue the ten-day notice of lease termination. If the tenant fails or refuses to voluntarily vacate the unit, the association could file an eviction lawsuit.

The cooperation of the residents whose packages were taken by the tenant will be essential to the success of both the hearing held by the board as well as any eviction suit. Similarly, the video will be important evidence and needs to be preserved. The residents who were the victims of this conduct should also have reported the incidents to local law enforcement.

Q. The parking spaces in our association are actual condominium units. The association recently restriped the parking area and my space is slightly smaller and has been moved over a few feet, making it difficult for me to get in and out of the space. Did the board have the authority to change my parking space as it did here?

A. A parking space that is a condominium unit has legal boundaries and dimensions like other real estate. The plat of survey attached to your association’s declaration of condominium will identify the location of each parking space unit and its dimensions. The restriping of the parking space units in the parking area needs to conform to the plat of survey. The board would not have the unilateral right to detour from the location or size of the parking space units as shown on the plat.

There is a serious problem if the restriping of the boundaries of the parking space units deviated from the plat of survey.

Q. The annual assessments in our condominium association are payable monthly. However, some very large expenses are coming up for which our cash flow may not be adequate. Can the board give a discount to owners who pay their annual assessments early and in a lump sum so we can get over the cash flow hump?

A. The Condominium Property Act expressly provides that the board shall have no authority to forebear collection of assessments. As a result, while kudos are in order for the creative thinking, the board cannot offer an assessment discount to the owners who pay early.

Ÿ 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.