Q. Our condominium association recently held its annual meeting. There were four candidates running for the three open seats on the board. The ballots identified the four candidates. The instruction provided to the owners at the meeting was to vote for three candidates. About one-third of the ballots were cast for only one candidate, rather than for three. Are these ballots valid?
A. Yes. A ballot that is cast for less than all of the open seats on the board is absolutely valid. An owner is not required to cast a vote for all of the open seats on the board.
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There may be a number of reasons why an owner would not cast a vote for all of the open seats. For example, the owner may not have been familiar enough with all of the candidates, or the owner may have simply overlooked casting a vote for all of the open seats. This does not affect the validity of the ballot.
On the other hand, a ballot upon which an owner votes for more of the candidates than there are open seats is "spoiled," and would not be counted. If the owner realizes the error before the voting is closed, the "spoiled" ballot could be marked "spoiled," and replaced with a new ballot.
Q. Many, but not all, of the windows in our condominium association are failing. The board levied a special assessment against all unit owners to pay for these windows. I have objected strongly to my having to pay for other owners' windows. I read in the Condominium Property Act that windows are limited common elements. Doesn't that mean that the owner of the unit served by the windows has to pay for the cost to replace the windows?
A. It depends. Unless the association's declaration states otherwise, all portions of perimeter windows serving a unit are limited common elements. The condominium association is responsible for maintenance, repair and replacement of the common elements, including perimeter windows.
However, if, and only if, the declaration provides, the association can charge the cost of maintenance, repair and replacement of the windows to the owner of the unit served by the window. In the absence of such a specific provision in the declaration, the cost of maintenance, repair and replacement of the windows would be borne by the association, and a special assessment to fund the cost could be levied against all of the owners.
Q. A meeting of the members of our association was called to vote on a matter requiring the approval of two-thirds of all of the owners of the association. A quorum of owners was present, so the meeting was called to order. However, only about 50 percent of the owners were present, in person or by proxy (most by proxy). Therefore, even if every ballot were cast in favor of the matter, the matter being voted on would not have been successful. The board, not really knowing what to do, simply called for the vote and, of course, it did not pass. Was there anything that could have been done so we could have simply voted at another time?
A. Yes. By way of a motion, the meeting could have been continued to another date and time. Specifically, before the voting on the matter requiring owner approval began, the chairman of the meeting could have called for a motion to adjourn the meeting to a specific date and time. The motion to adjourn would have to be made, seconded, and voted on by the members present in person or by proxy. The motion to adjourn would pass upon the affirmative vote of a majority of the owners present in person or proxy.
Any proxy that indicated it was valid for any adjournments of the meeting would continue to be valid when the meeting reconvened, and a new notice of meeting would not have to be issued. Continuing the meeting would permit the board to solicit more proxies so that the matter requiring owner approval would have a chance of passing.
Do note that once the voting on the matter requiring owner approval begins, the vote must be concluded. A motion to adjourn cannot be made during the vote, and the vote on the issue requiring owner approval would stand.
• 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.