Q. Can the board assemble outside the presence of unit owners to discuss association matters, where no vote will be taken?
A. Until recently, the answer was "yes." That has changed because of a recent Illinois appellate court decision, and the answer is now "no."
These gatherings are commonly referred to as "workshops." Workshops are usually held as planning sessions for a board, but no formal votes are taken. The open meetings provisions of the statutes that govern Illinois associations apply if the board is "conducting board business." Conducting board business, the appellate court recently held, includes discussion or consideration of association matters when a quorum of the board is present, even if no vote is taken.
As such, "workshops" that are not open to owners and held without proper meeting notice are no longer permitted.
Closed sessions of a board may still be held to discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal (or when the board of managers finds that such an action is probable or imminent); to consider information regarding appointment, employment or dismissal of an employee; or to discuss violations of rules and regulations of the association or a unit owner's unpaid share of common expenses.
Q. Our condominium association has a rule in place concerning distribution of written materials by owners to owners. The rule prohibits the distribution of any materials, unless first submitted to the board for approval. Is this permitted?
A. No, this rule is not permitted. The board has the power to adopt and amend rules covering the details of the operation and use of the property. However, no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution, including but not limited to the free exercise of religion. Nor may any rules or regulations conflict with the provisions of the condominium instruments.
A board may impose reasonable time, place and manner restrictions in terms of owner-to-owner distributions. For example, a board may be able to prohibit an owner from slipping fliers under unit doors. However, the rule here that requires board approval of content before an owner can distribute materials to owners is absolutely unenforceable.
Q. The board of our association is looking for ways to reduce our expenses. We have a swimming pool that is old and very expensive to maintain for the few residents who actually use it. Can the board close or remove the pool or other similar facilities?
A. An association board has the fiduciary obligation to maintain, repair and replace the common elements and areas. Closing or removing, rather than maintaining, significant common facilities like a pool, clubhouse or tennis court is generally not a decision that a board can make on its own. Rather, such a decision should require a unit-owner vote.
The conservative approach dictates obtaining the same unit-owner approval as would be required to amend the association's declaration. So, for example, if your declaration requires the approval of two-thirds of all owners to approve an amendment to the declaration, the board should call and hold a unit-owner meeting and seek and obtain two-thirds approval of all the owners in the association before closing or removing facilities.
Depending on the language of the association's declaration concerning the facilities at issue, an amendment may be in order. If a board closes or removes significant common element facilities on its own, without unit-owner approval, it is exposed to liability for breach of its fiduciary duty.
• 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.