Defining a majority for the purposes of rule changes

Q. An amendment to our condominium association’s declaration requires the affirmative vote of owners having not less than two-thirds of the vote in the association. A controversy has erupted as to whether this means the vote of two-thirds of the owners who are present at the meeting, or whether it means two-thirds of all of the owners in the association. Which is correct?

A. The answer is found in the definition of “majority” found in the declaration of condominium for your association. Your declaration states, as do most, that “’majority’ or ‘majority of the unit owners’ means the owners of more than 50 percent in the aggregate in interest of the undivided ownership of the common elements. Any specified percentage of the unit owners means such percentage in the aggregate in interest of such undivided ownership.”

The language of your declaration is crystal clear that an amendment to the association’s declaration requires the affirmative vote of two-thirds of all of the owners in the association, not simply two-thirds of the owners who are present at the meeting.

Q. The board of our condominium association is amending the association’s rules. What is the process that we have to follow?

A. Rules covering the details of the operation and use of the property can be adopted and amended by the board at a board meeting. Adoption of rules does not require a vote of the unit owners. However, Section 18.4(h) of the Illinois Condominium Property Act provides that there must be a meeting of the unit owners called for the specific purpose of discussing the proposed rules before there can be a meeting of the board to adopt the rules. Do note that the two meetings can be held back-to-back on the same evening. No quorum is required at the meeting of the unit owners.

Written notice of the unit owner meeting must be mailed or delivered giving members no less than 10 and no more than 30 days’ notice of the time, place and purpose of such meeting. The notice of the unit owner meeting must also include the full text of the proposed rules and regulations. Notice of the meeting of the board to adopt rules would have to be issued to the board members and posted 48 hours in advance of the board meeting. The rules, as adopted, should be distributed to the unit owners, or the owners should be advised as to how to obtain a copy.

Q. An owner in our association is under water, and made the decision to “walk away” from the unit. The owner is substantially delinquent in the payment of association assessments. The owner, without explanation, delivered the keys to the unit to our property manager when he moved out. Can the association lease out the unit and apply the rent to the balance due the association?

A. While an owner can agree to voluntarily relinquish possession of their unit to the association, the mere delivery of the keys by the owner did not serve to accomplish this. The owner may have delivered the keys so the association could enter the unit in case of an emergency.

When a delinquent owner “walks away” from the unit, the association should attempt to obtain a written agreement between the association and the owner. The agreement would provide that possession of the unit is being voluntarily relinquished to the association and it should specifically authorize the association to lease out the unit and apply the rents to the sums due to the association by the owner.

In the absence of such an agreement, the association is going to have to obtain an order of possession in an eviction lawsuit before it can lawfully lease out the unit. Otherwise, the association and its tenant is a trespasser.

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.