Q. I cannot locate copies of the minutes of meetings of the board or owners of my community association. Are minutes supposed to be filed somewhere in the public record, like with the county or state, just like the declaration?
A. A community association's meeting minutes are not public records, and are not filed with the county or state. That said, meeting minutes are to be maintained by each association as part of the corporate books and records. Such minutes must generally be made available for examination and copying by unit owners.
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Q. We recently learned that we have a construction defect in a common element that has caused our upstairs neighbor's floor to squeak loudly when she walks on it. After attempting twice to fix the problem, our condominium association has told us that we are now responsible for fixing the issue. I understand that the area between our ceiling and our neighbor's floor is considered a common element. Who is responsible for fixing this problem?
A. Even if the problem is the result of a construction defect, an association could be responsible for maintaining, repairing, and replacing the defective common element.
However, if there is a construction defect in a common element, resulting in the noise, the board should consider pursuing the developer. Before doing so, the board should retain an engineer to confirm there is a construction defect. The board should also retain counsel to examine the viability of the claim under various legal theories, such as breach of contract, breach of implied warranty, and breach of contract. However, having made a repair before pursuing a claim with the developer could jeopardize the ability to pursue the developer claim, as the result of spoliation of evidence.
Q. With elections coming up, our condominium association has been asked to consider a rule banning anyone from a board position who has been convicted of a felony or misdemeanor theft. Is this permitted?
A. In general, in a condominium, any owner is eligible to run for and be elected to the Board. That said, many associations have adopted "good standing" requirements. These "good standing" requirements provide that an owner who is delinquent in the payment of assessments is not eligible to run for or to serve on the board. Association board members are fiduciaries. As such, I can understand the desire to bar individuals from the board who may not be financially responsible or who have been convicted of certain crimes. Such restrictions may have a better chance of surviving a challenge if located in the declaration as opposed to a rule. Nonetheless, the validity of restrictions on who can serve on the board has not been the subject of an appellate court decision in Illinois, and is currently an unresolved issue.
Q. A common element pipe located above my condominium unit leaked causing damage to a piece of my furniture before the pipe was fixed by the association. I made a demand on the association to reimburse me for the couch; however, my demand was denied. Isn't the association responsible for this damage to my furniture?
A. The association is not an insurer, and the association is not strictly liable for damage to your furniture caused by a common element water pipe leak. In order for an owner to prevail on such a claim, the owner would have to prove that the damage to the furniture was caused by the association's negligence. The association may be negligent if it knew, or should have known, about a problem with the pipe and if the association failed to take timely or appropriate action. That is a difficult claim to prove. Most condominium declarations address this issue in an indirect manner and require owners to maintain insurance on their own personal property.
• 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.