How does an association devide deductible costs?
Q. A unit owner turned the water on in their bathtub and, forgetting they had done so, left the unit for about an hour. The tub overflowed and caused damage to the common elements and to other units that was covered by the association's property insurance. However, the association's policy has a $5,000 deductible. Who is responsible for the deductible?
A. The board has three options here under the Condominium Property Act, with respect to the association's master insurance policy. The board may, in the case of a claim for damage to a unit or the common elements, (1) pay the deductible amount as a common expense, or (2) after notice and an opportunity for a hearing, assess the deductible amount against the owner who caused the damage or from whose units the damage or cause of loss originated, or (3) require the unit owners of the units affected to pay the deductible amount. Here, option No. 2 would seem most appropriate.
Q. Rodents entered a unit in our association through damaged common element siding. The association is responsible for the maintenance of the siding. The owner hired an exterminator at significant expense to rid the unit of the mice. The owner is now demanding that the association reimburse her for the exterminator. Is the association responsible for this owner's exterminator bill?
A. It depends. The association is not an insurer and is not automatically liable for damage that results from a failure of the common elements. However, the association will be responsible for the owner's exterminator expense if the association knew, or should have known, of the damage to the siding, and if the association failed to take timely or appropriate action to repair the damaged siding, and if that failure caused damage to the owner. That is a question of fact, and the burden of proof is on the owner.
Q. Our association's board meetings can sometimes last for hours. What one suggestion would you make to reduce the length of these meetings?
A. There are many things that can be done to manage the length of a board meeting. But if limited to one, I suggest that the board use, and stick to, a "timed" agenda. That is, each agenda item should include a description of the amount of time to be allocated to that item. Of course, the amount of time to be allocated to each agenda item needs to be appropriate for the subject matter. The president needs to manage the meeting so as to keep to the agenda and the time allocated to each item. The targeted total length of the meeting should be about one hour. It can be done.
Q. An owner in our association pays monthly assessments late, so we assess a late charge. This owner is also a frequent rules violator and has been fined often. As a result, the owner's account statement shows he owes thousands of dollars in late fees and fines, but no assessments. Can we evict the owner for nonpayment of these charges?
A. Legally, "yes." Practically, "no." An Illinois association can utilize the forcible entry and detainer (eviction) suit to collect unpaid assessments and other lawful charges. However, as a practical matter, it is difficult to convince a judge to enter an order evicting a person from their home when the unpaid balance is comprised entirely (or mostly) of charges that are not assessments.
Associations still have a remedy. A breach of contract suit can be filed against the owner. This would result in a judgment in the amount of the unpaid late fees and fines, just like in an eviction suit. However, the association would have to collect the judgment through, for example, a wage garnishment, rather than through possession of the unit.
• 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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