New rules make amendments to declaration easier

Q. Our condominium association is considering several amendments to the declaration of condominium. The amendment language says the amendment must be signed and acknowledged by a stated percentage of owners, in order to adopt the amendment. Does this involve a notary, and do we really have to do that?

A. The language in many condominium declarations, like yours, requires that an amendment by signed and acknowledged by unit owners. The owner does not have to sign the amendment in front of a notary; however, the owner does need to "acknowledge" before a notary that it is their signature.

The notary, after identifying that the owner is who they say they are, then affixes their seal to the document and completes a written statement that the signature was acknowledged before them. That process can be quite cumbersome and can make it impractical for many associations to obtain the necessary approval for an otherwise supported amendment to its declaration. But I have good news!

Say "goodbye" to the notary requirement. The Condominium Property Act has been amended, effective January 1, 2015, to make it easier to obtain owner approval if the declaration requires a signature to be acknowledged. After January 1, no action required or permitted by any condominium instrument or any provision of the Condominium Property Act need be acknowledged before a notary public if the identity and signature of the person can otherwise be authenticated to the satisfaction of the board. I'll address how that is done in a later column.

Unfortunately, this only applies to condominiums, and not to master associations or common interest community associations. This is another reason why Illinois needs to join the rest of the states and establish a uniform statute that governs all types of associations. The patchwork quilt of separate statues in place now for different types of associations is ridiculous and can't realistically be justified.

Is the legislature listening? Senator Bueller … Bueller … Bueller …

Q. The declaration for our condominium states that only unit owners who reside on the property can be elected to the board. Is this enforceable?

A. In my opinion, a board member residency requirement in a condominium declaration violates two provisions of the Condominium Property Act: Section 18(a)(1) that says "all board members shall be elected at large," and Section 18(b)(2) that states "the association shall have one class of membership."

The residency requirement would violate Section 18(a)(1) because it does not permit board members to be elected at large, but rather limits the pool of candidates to resident owners. The residency requirement would also violate Section 18(b)(2) because it would create two classes of owners - that is, resident owners who could be elected to the board and nonresident owners who could not be elected to the board.

Therefore, it is my opinion that a condominium board member does not have to reside on the property. That said, there is no reported Illinois appellate case law on the issue.

Q. The board members of our association occasionally speak in whispered tones, or board members intentionally cover their mouths, during open sessions of board meetings so that the owners attending cannot hear what they are discussing. I was in the first row and could not hear them! Is this appropriate?

A. The spirit and intent of the statutes requiring board meetings to be open to owners would suggest that the board speak at a volume that is loud enough to permit owners who are in attendance to hear them. The board members should be asked to speak up. Of course, if the board is touching on a matter that is permitted to be discussed in a closed session of the board, the board should move into a closed session and the owners excused from that portion of the meeting.

• 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.