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posted: 3/8/2014 12:01 AM

Ice dams on roof concern unit owners

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Q. I own a townhouse-style condominium unit. The drywall and paint in my unit, like others in the development, has been damaged from leaking from an ice dam that has formed on the common element roof. The association has passed rules that provide that the owner is responsible for paying to repair ice dams. Is this permitted?

A. In general, the issue here is determined by the association's declaration. Rules adopted by the board concerning who is responsible for this repair would have to be consistent with the declaration, and could not contradict what is in the declaration. There are various potential causes of ice damming. The cause of the ice damming, identifying what was damaged, and the proposed solution, all need to be determined before a decision can be made as to who is responsible to implement and pay for the particular solution and for what has been damaged.

Typically, if a common element roof is damaged as the result of ice damming, the association is responsible for the repair to the roof. Often, the associations is responsible for damage to the drywall for the unit to the primer coat; however, this responsibility could be shifted to the owner if the drywall is a limited common element and if so provided for in the association's declaration. The owner would typically be responsible for the paint and wall covering of the drywall.

It's possible that the rules are consistent with the declaration in your case. However, the rules should be carefully scrutinized to make sure they are not an attempt to improperly shift a repair burden that might otherwise be on the association. The board would be wise to involve association counsel in this matter.

Q. I have concerns regarding the recently revised rules for our condominium association. The board distributed a revised rules manual to all unit owners that will soon be officially approved by the board at an upcoming board meeting. Nothing was included to tell owners which of the rules were changed, new or deleted. Previously, whenever changes were made, the owners were informed what the "old version" of the rule was, and then the "new version" was clearly specified, for example. Do you feel this was an acceptable way for our new rules manual to be distributed to the residents?

A. Let me start by explaining the procedure set out in the Condominium Property Act to amend the rules. Rules covering the details of the operation and use of the property may be amended by the board at a board meeting. The adoption of rules does not require the vote of the unit owners. The act provides that there must first be a meeting of the unit owners called for the specific purpose of discussing the proposed rules before there is a meeting of the board to adopt the rules. The two meetings can be held back-to-back on the same evening. No quorum is required at the meeting of the unit owners.

Importantly, the notice of the unit owner meeting must also include the full text of the proposed rules. That is relevant to the issue you have raised. Prudence dictates that the board needs to provide the owners with some meaningful description of the proposed revisions to the existing rules. Distributing a complete set of the association's rules, without distinguishing between the existing rules and the rules that are proposed to be changed or proposed new rules, doesn't seem to meet the spirit and intent of the law.

That is, it should not be the owners' burden to find the proposed changes in the rules manual, like some game in a magazine in your doctor's waiting room. Given today's technology, it isn't difficult to create a document that at least highlights the provisions in a rules manual that have been changed or that are new.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at 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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