Q. A unit in our association has been occupied by the same individual for many years. The board thought this person was the owner. Recently, that person moved out of the unit and another person moved in. The board was never advised of a sale of the unit, as our governing documents require. The new resident claims he and his brother, who had occupied the unit, have been owners of the unit for many years; that his brother moved out West; and that he is now living in the unit. How can the board confirm the resident's representation that he is, and has been, an owner?
A. The board should request this person provide a copy of the recorded deed to the unit. Alternatively, the association can obtain an ownership search through a title company that can also provide a copy of the last recorded deed to the unit. The deed should resolve the issue pretty quickly. That said, if the unit is owned by a trust, the inquiry may have to go a little deeper and documents would have to be provided by the trust to identify the current beneficiary. The board should consult with an attorney to resolve ownership in that scenario.
Q. I was recently elected to the condominium board. My concern is that the board has not been compliant with our bylaws. The board has been making some decisions outside of a meeting with no owners present. Our bylaws state that informal actions "may be taken without a meeting if consent in writing, setting forth the action so taken, shall be signed by all of the members with respect to the subject matter thereof." There are five members on our board. If an informal action is taken by agreement of the board, do all five members have to be in agreement to take action before it can be ratified at a meeting?
A. A provision like this is common in bylaws for a nonprofit corporation. The problem with such a provision in a condominium is that it is difficult to reconcile with the provisions of the Condominium Property Act. That is, the law requires meetings of the board to be open to owners, and that notice of board meetings be given and posted on the property at least 48 hours before the meeting.
In my view, the informal consent provision should be reserved for an emergency, when a decision absolutely must be made before there is time to call and hold a proper meeting. In that situation, and given the bylaw provision, the informal unanimous decision of the board should be ratified at the next board meeting. This informal process should not be routinely used as a substitute for board meetings.
Q. We are a small 15-member condominium association. Our bylaws provide that written notice of meetings of the members be mailed by U.S. mail or personally delivered with written receipt to each member entitled to vote at such meeting. The notice of a meeting is deemed mailed when deposited in the U.S. mail addressed to the member at his address as it appears on the records of the association, with proper postage thereon prepaid. Given that email was not available when the association was formed, what can we do to permit the use of email as a way to give notice of member meetings?
A. The current language of the association's bylaws does not permit email notice of meetings. The board has a couple of options here. Owners can agree in writing to receive notice of meetings by email at a designated email address in lieu of "snail mail" or personal delivery, or the bylaws can be amended to permit notice of meetings to be provided by email to those owners who provide an email address. Owners who don't have email would receive notice by U.S. mail or personal delivery.
Q. I am writing to ask if an association's board of directors' election can be appealed?
A. Every association should adopt a procedure for recounts of the results of an election. The procedure should set forth the time within which a demand for a recount must be made, how it is made, and the assessment of the cost of the recount (for example, unless the recount resulted in a change in an election outcome, not merely votes, the cost would be borne by the person demanding the recount). The procedure should allow the candidates themselves or a designated representative to observe but not participate in the recount.
If an owner suspects there is an issue with an election beyond just the accurate tabulation of the votes, like for example, forged proxies, the owner could certainly file a suit in an attempt to set aside the election results and to seek a new election.
• 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.