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Article posted: 10/12/2013 12:57 AM

Avoid the pitfalls of proxy voting

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By David M. Bendoff

Q. A column of yours from earlier this year discussed an election practice that many associations I manage use. That is, the proxy given by one unit owner to another, which designates who the owner wants the proxy holder to vote for in a board election during ballot counting at the annual meeting. If so many associations use this practice, how can it be wrong?

A. I do appreciate that many associations do as your associations have done with proxies. There are two approaches that an association can deploy in this regard.

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The first is the "Dot every I, cross every T" approach, or the letter of the law approach. The other is the "pragmatic" approach.

Under the former approach, a ballot is to be issued to the proxy holder at the annual meeting, and the ballot completed by the proxy holder in accordance with the instructions of the owner as described in the proxy. Under the "pragmatic" approach, the proxy holder, who would have to be present at the annual meeting, would simply deliver the proxies without completing ballots, and the association would count those proxies just like they count votes.

The pragmatic approach "works" in a whole lot of cases where associations operate a little more loosely than the letter of the law requires. However, this approach does open the door to a potential challenge of an election. Each association needs to weigh the time savings enjoyed by the pragmatic approach with the legal and financial risk of a challenge.

Q. What's the impact of Illinois' new concealed-carry weapons law going to be on associations?

A. The best answer I can provide at the current time is the law creates substantial uncertainty for associations with respect to the ability to regulate the carrying of concealed weapons (by holders of a concealed-carry weapons permit) on the common elements by residents.

Many associations will want to impose restrictions on where a resident can carry a concealed weapon. I am inclined to advise clients who want to do so to impose such restrictions by way of rule -- although an amendment to the declaration would be better. However, I would add the proviso that the rule has to be reasonable, and the restriction may be subject to judicial scrutiny.

Such rules probably stand a better chance of surviving a legal challenge in Cook County than in other counties; however, what might happen at the appellate court level is anyone's guess.

The board could certainly adopt a rule prohibiting the concealed carry of weapons in common areas by guests and invitees and other nonresidents of the association. The proper signage would have to be posted, in accordance with the guidance provided by the Illinois State Police.

The real issue is the extent to which the association can restrict the carrying of concealed weapons by residents of the association. There is a void of guidance in this area from other jurisdictions where such laws have been around for a while, which surprises me given the plethora of associations in Arizona and Florida, for example.

The concealed carry law in Illinois does impose numerous exceptions on where a concealed weapon can be carried. None of them are directly applicable to association; however, they are instructive and provide an insight into what may be the public policy in Illinois. Carefully drafted rules may permit the board to bar concealed weapons from being carried in specific portions of the common elements. Associations could consider restricting the carrying of concealed weapons at meeting rooms, board meetings (and violation hearings), unit owner meetings, swimming pools, and similar recreational facilities where a group may gather.

Again, this is uncharted territory, and we will have to await guidance from the courts (or through further legislation) as to the ability (and the extent of that ability) of associations to restrict the carrying of concealed weapons on the property by residents who have a concealed-weapons permit.

• 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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