Q. The enormous snowfall this winter has caused snow to fill balconies that serve the individual condominium units. This has caused the drains on the balconies to become clogged with snow and ice. As a result, the melting snow on the balconies has leaked into the building and has caused serious damage to the units. Can the board require owners to remove the snow from their balconies?
A. The declaration for your association provides that the balconies are limited common elements. The declaration also includes language that permits the board to require owners to maintain the limited common elements serving their units.
As such, the board can require owners to take action to remove snow from against the building on the balconies, and to keep balcony drains clear of snow. A rule could be drafted and adopted by the board to address this.
In some instances, it might be appropriate also to require owners to shovel all snow from the balconies.
This assumes that shoveling of snow from the balconies is practical. For example, the board needs to be careful to avoid creating a situation where snow shoveled from a balcony lands on another balcony or worse.
Q. One of our board members seems to have little time for association matters. This makes it difficult to schedule board meetings. Meetings are often scheduled only to be canceled at the last minute because something comes up that prevents this one board member from attending. The times he is available to meet are not doable for the rest of the board. What can the board do about this?
A. Meetings of the board do not require the attendance of all board members. The board can conduct meetings when a quorum of the board is present. Typically, a majority of the board constitutes a quorum. The unit owners should expect all of the board members to be engaged in the administration of the association, and to attend board meetings.
An attempt should be made to schedule meetings when practical for all board members. However, the business of the board shouldn't be held hostage by the schedule of a single board member. The board should schedule and proceed with its meetings, with or without this board member in attendance, as long as a quorum is otherwise present.
Q. I live in a single-family detached home development. I have discovered that our declaration of covenants and restrictions, recorded in 1990, is outdated and the bylaws and architectural guidelines were not recorded as required by the declaration. I have encouraged the board to update and record all documents. This was met with animosity and the refusal to change anything. Shouldn't the board do this, and what are my options if it won't?
A. I am assuming your association is a common interest community association. The association can amend the declaration and bylaws as may be required to conform to the Common Interest Community Association Act. This can be accomplished in one of two ways.
It can be done by vote of two-thirds of the members of the board of directors (without unit owner approval). Or, it can be done by a majority vote of the members of the association at a meeting called for this purpose.
I have seen many associations rely upon, to their own detriment, outdated governing documents. These simplified amendment procedures should be investigated by the board of associations from time to time to ensure their governing documents are up to date.
Given the board's fiduciary duty, it is important for an association's governing documents to conform to the governing law. If the board won't do this, the owners should consider following a process to call a meeting of the owners for the purpose of voting to approve the update of the governing documents and to direct the board to do so. Or, elect a board that understands the need to do amend the documents.
• 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.