Board must confirm candidates are owners

Q. From time to time, our association unknowingly elects someone to the board who we later learn is not the owner of a unit. How and when can our association make sure a candidate for the board is an owner?

A. All associations should confirm that a candidate is an owner. This should be done before the notice of annual meeting and proxies are distributed to owners, and immediately after persons have identified themselves as candidates.

Ownership can be confirmed by having the association's counsel obtain a tract book search for the unit of each candidate. This will identify the owner of record of the unit. If the unit is owned by an individual or individuals, determining ownership will be easy. Additional investigation will be required if the search indicates the unit is owned by a trust or other legal entity.

If a unit is owned by a trust, then the trustee or the current beneficiary of the trust are deemed the owner. This information can be gleaned from the trust agreement, which should be provided by the candidate.

The association's declaration and bylaws need to be reviewed if a unit is owned by a corporation or limited liability company. The governing documents should indicate who is eligible to serve on the board under each of these forms of ownership.

Q. The declaration for our condominium limits the number of proxies that can be given to any one person. It states no voting member may cast a proxy vote for more than three owners. This tends to disenfranchise many owners who give their proxy to the same person, but who can then not vote them. Is this limitation valid?

A. The restriction is lawful. In general, unless the association's articles of incorporation or bylaws provide otherwise, owners can vote by proxy. Since these documents can prohibit voting by proxy, they could similarly restrict the number of proxies that a voting member may cast on behalf of other owners. There are ways that a proxy can be drafted to minimize the impact of this restriction, and the association's counsel should be consulted about appropriate language.

Q. Many members of our association speak English as a second language. As a result, these members account for a higher number of violations of our governing documents. Do you have any practical guidance?

A. Ignorance of the content of the association's governing documents will not excuse violations. However, the association's declaration and rules won't be followed if residents don't understand the language in which they are printed.

So that non-English-speaking residents can understand the governing documents with which they are being asked to comply, some associations have had their declaration and rules translated into the language of non-English speaking residents. Some associations also hold bilingual orientation meetings for residents.

Q. No one at the board meetings of our association is taking minutes and minutes of board meetings are not prepared or maintained. Is an association required to maintain minutes of board meetings? Isn't this the role of the secretary of the board?

A. It is fundamental corporate law that board action be memorialized in minutes of its meetings. The failure of the board to prepare and maintain minutes exposes the board and association to liability, and is a breach of the board members' fiduciary duty. The statutes that govern Illinois condominium associations, master associations and common interest community associations require minutes of board meetings to be available for inspection and copying by owners.

The secretary of the board is responsible to maintain the minutes. However, this does not mean he or she must be the person who actually prepares the minutes. That can be done by a third party designated by the board.

• 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.