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posted: 8/17/2013 12:08 AM

Association bylaws determine voting rules

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Q. There are only three candidates for the three open seats on the board, each for a two-year term, that are up for election at the upcoming annual meeting. Do we have to cast ballots, or can we elect this slate by acclamation?

A. Under "Robert's Rules of Order," if there is no opposition, and if an election is uncontested, the slate of candidates can be elected by unanimous consent (acclamation). Under such a circumstance, voting by ballot would not take place, and the slate could be elected by voice following the appropriate motion. However, unanimous consent cannot be used if the association's bylaws require the election to be by ballot.

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The bylaws would have to be reviewed to determine if balloting is required. However, if there is any objection to a motion to elect a slate by acclamation, the election would have to be conducted by ballots.

Note that an election by acclamation would not be appropriate if the board members to be elected would serve for different terms of office. For example, if three board members are to be elected, two for a two-year term, and one for a one-year term, ballots would have to be cast. The two candidates receiving the highest number of votes would be elected to the two-year terms and the candidate receiving the least votes would be elected to the one-year term.

Q. You recently suggested confirming that candidates for election to the association's board are unit owners. You also mentioned that one of the ways to do this is to obtain a tract book search. Can't we just get owner information posted online from the county assessor's taxpayer records?

A. The taxpayer identified on an assessor's records may or may not be the owner of record. That is, the taxpayer is not necessarily the owner of record; it just identifies to whom tax bills are being sent. For example, if a unit is owned by a husband and wife, the taxpayer might be identified as just one of the co-owners. Therefore, the county assessor's records identifying the taxpayer for a unit is not a substitute for a tract book search through a title company or similar service provider.

Q. We are not a condominium association. However, our common interest community association was previously governed by section 18.5 of the Illinois Condominium Property Act. Now, we are governed by the Common Interest Community Association Act ("CICAA"). I have perused CICAA, and many of its provisions conflict with the provisions of our association's governing documents. Is there a procedure for the board to amend the declaration and bylaws to bring them into conformity with CICAA?

A. Yes, the board can adopt an amendment to the association's declaration to conform to CICAA. In general, this amendment can be adopted by vote of two-thirds of the members of the board at a board meeting called for that purpose. An amendment of this type would not require the approval of owners.

Many non-condominium associations that were previously governed by Section 18.5 of the Illinois Condominium Property Act are now governed by CICAA. However, many association boards are not aware of this, and are acting improperly based on outdated governing documents or the wrong statute. The board of an association that is not a condominium should spend a few minutes on the phone with their association's counsel to ascertain the nature of their association, and the proper governing statute. And an update to the governing documents may be in order.

Q. I am a newly elected member of my association's board of directors. Do you have any suggestions about what I can do to prepare myself for the responsibility of being a board member?

A. There are many, many things you can do, and I will highlight just a few. New board members should familiarize themselves with their association's governing documents. These include the declaration, bylaws and rules. Depending on the type of association you live in, you should also become familiar with governing statutes for the association. Examples would be the Illinois Condominium Property Act and Common Interest Community Association Act.

You should review the association's budget and financials to get a handle on association operations. It's also helpful to review minutes of board meetings for at least the past year; this will give you a sense of the issues facing the association.

Various trade associations, like Community Associations Institute's Illinois chapter and the Association of Condominium, Townhouse, and Homeowners Associations, provide educational programs designed for board members. Review their websites for offerings, and persuade your board to become members in these organizations. It's an absolutely appropriate expenditure for an association, and money well spent!

• 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.

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