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posted: 7/27/2013 12:01 AM

Four-year board term acceptable

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Q. The declaration of covenants for our common interest community association provides that the term of office for each board member is four years. That seems like a long time. Is a four-year board term permitted?

A. The Common Interest Community Association Act provides that a board member can be elected for a term of no more than four years. Further, a board member can succeed themselves. This means that a board member can be re-elected after the expiration of his or her board term. So, the four-year term for board members in your common interest community association is proper.

Q. Each condominium where I live is served by a patio. My neighbor smokes on his patio, and the smoke wafts over to my patio or into my unit if I keep the windows open. I can't enjoy my patio or unit. Is there anything I can do about this?

A. You do have remedies. For example, most declarations include a provision that prohibits any resident from causing or creating a nuisance. Each owner can enforce such a covenant against any other owner. As such, aside from any action that the board of the association may be able to take in connection with this matter, you can file a suit against the offending owner to prevent him from committing this nuisance. You might also be able to recover damages.

Q. During the housing boom, I combined two side-by-side condominium units into one very large unit. This was accomplished by recording an amendment to the declaration. There is no longer a market for such a large space in my building. Can I now divide my large combined unit and return it to the original two separate units?

A. Yes, unless the association's governing instruments prohibit this, you can divide the combined units into two individual units. This requires an amendment to the association's declaration; similar to what was required to combine the two units originally.

You must make written application to the board of managers requesting an amendment to the condominium instruments. The amendment would set out the percentages of ownership for the two new units (that is, the percentage of ownership for the combined unit would be divided up between the two new individual units), and would describe the new unit numbers for each unit.

The amendment must also include a revised plat of survey showing the boundaries of the two new units. The amendment, approved by the board, only needs to be signed by the owner of the unit to be divided. That is, the general amendment procedure in the condominium declaration, requiring approval by some specified percentage of all the owners, is not applicable.

This is a complicated matter, and the association's counsel should be involved to prepare the amendment and to ensure that legal requirements for dividing a unit are followed.

Q. Can the board of our association publish a list of owners who are delinquent in the payment of assessments and other charges to the association?

A. Publishing a unit owner delinquency list is a very risky tactic from a legal perspective. It is seldom effective, and can expose the association to liability if the information is not absolutely accurate. The association would be better served by referring collection matters to an attorney who handles association collection cases.

Q. The name used to identify our association in the association's condominium declaration is not the same name under which the association was incorporated. Is this OK?

A. The difference between the two names may cause a little bit of confusion when the association opens a bank account or seeks a loan. However, with the appropriate explanation to the bank, this should not be a serious impediment.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at 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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