Townhouse and condominium associations are governed by different laws

Q. I currently live in a townhouse association. My question is this: Are there different rules governing a condominium association, and a townhouse association? And if so what is the name of the Illinois statutes for both?

A. There are different statutes that govern Illinois condominium association and townhouse associations that are not condominiums. This latter type of association is called a common interest community association. Condominiums are governed by the Illinois Condominium Property Act. Common interest community associations are governed by the Illinois Common Interest Community Association Act.

Q. What are the exceptions to the requirement that meetings of the board of a condominium be open to unit owners of a condominium or common interest community association?

A. Meetings of the board of the association need to be open to any unit owner. The only exception is for the portion of any meeting 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 the appointment, employment or dismissal of an employee;

• To discuss violations of rules and regulations of the association or a unit owner's unpaid share of common expenses.

These closed portions of a board meeting are generally referred to as "executive session."

Let me clarify a confusing statement I made in the July 12 column. The vote (not the discussion) by the board on any topic that can be discussed in "executive session" must occur at the portion of a board meeting open to any unit owner.

Q. I am on the board of my association. Unfortunately, my fellow board members refuse to take any action, other than writing a reminder letter, to collect delinquent assessments from unit owners. The reason cited by board members is they do not want to pay legal fees, or they feel sorry for these owners. As a result, delinquencies are so widespread and severe that we are having trouble paying the bills and can't maintain the property. And some assessments are uncollectable as the result of foreclosures of units.

What can I do to convince the board that it needs to collect these assessments?

A. The failure to collect assessments, and the resulting inability to pay bills and to maintain the property, is a serious breach of the board's fiduciary duty to the association and the owners. This exposes the board members to liability for assessments that may be uncollectable as the result of this breach. While compassion toward a fellow unit owner who is in financial distress is commendable, the board does have a legal duty to take appropriately aggressive legal action against such owners to collect unpaid assessments. A desire not to pay attorney's fees isn't going to be a good defense if the board gets sued.

Note, too, that by statute, the association is entitled to seek recovery of its legal fees from the delinquent owner. Further, if the board adopts a collection policy whereby it refers matters to counsel if an owner is in arrears for 60 days, the assessments and legal fees would typically be recovered quickly from the owner. Your fellow board members need to either exercise their fiduciary duty or resign.

• 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.