Q. I live in an association of single-family homes. Our governing documents (declaration, bylaws, rules) refer to the Illinois Condominium Property Act. Is it necessary for our board to amend the instruments to reflect that we are now governed by the Common Interest Community Association Act, and not the Illinois Condominium Property Act? If so, does this require any change to be recorded? What happens if a legal issue comes up and the documents have never been changed?
A. Initially, an association of single-family homes can be governed by the Illinois Condominium Property Act, and each home can be a condominium unit.
Whether the association is governed by the Illinois Condominium Act turns on whether the developer, in the declaration, expressed an intent that the property be governed by the Condominium Property Act. This is typically done by a simple statement to that effect. If that intent has been expressed, then the association of single-family homes would be governed by the condominium law. In such an instance, the association would not be a common interest community and would not be governed by the Common Interest Community Association Act.
That said, I have reviewed association documents for single-family homes wherein the property has not been properly submitted to the Condominium Property Act, yet the governing documents make one or more seemingly inadvertent references to the Condominium Property Act. This is the result of sloppy drafting. If that is the situation here, the board could adopt an amendment to the governing documents. The amendment would correct the error and conform the governing documents to the Common Interest Community Association Act.
The amendment would not require owner approval, and would be recorded with the recorder of deeds. Failure to revise the governing documents in such a situation could create confusion, litigation and liability if the actions of the association do not conform to the applicable law. This is a complicated matter and should be reviewed by association counsel.
Q. I have several questions concerning voting for condominium association board members. When should the votes be counted? Who should count the votes? How many people should count the votes? Should the person who counts the votes have their name entered into the minutes?
A. Votes should be counted at the annual meeting of the association, immediately after the close of voting. It is advisable for the board to appoint election inspectors to count the votes. The election inspectors should not be candidates for the board, and preferably not current board members. The managing agent can also perform the task of tallying the vote if management is amenable. As an alternative, many associations retain the services of an accounting firm to tally the vote instead of election inspectors or management, and this is permissible.
There isn't really any standard as to how many people should count the votes; however, in actual practice it is often a minimum of two. The persons appointed as election inspectors, or whoever is doing the vote count, should be identified in the minutes.
Note also that the candidate or a candidate's representative may be present when the vote is being counted. However, they are there to observe and not to actually participate in or comment about the count.
The results of the vote should be announced at the annual meeting. In some large associations, where an accounting firm is handling the counting of the votes, the preliminary result is sometimes announced at the annual meeting, subject to confirmation in the calm of a final count in the accountant's office.
• 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.