State gives leeway in use of technology
The Illinois Condominium Property Act is catching up with technology, as evidenced by recent additions to the law that are effective this year. These additions have spawned numerous questions, some of which are addressed in today's column. Note that to implement the use of this new technology requires the adoption of rules, many of which are complicated. Therefore, an association considering any of the concepts discussed today should work closely with counsel familiar with these new laws.
Q. The declaration for our condominium requires notices to be provided to unit owners either in person or by U.S. mail. The board would like to provide notice by email, as it is much more efficient and cost effective. Is this permitted?
A. Good news! Section 18.4(s) has been added to the Illinois Condominium Property Act to address this issue. That section now grants the board the power to adopt rules authorizing electronic delivery to unit owners of notices and other communications required or contemplated by the Condominium Property Act. However, this can only be done if the owner provides the association with written authorization for electronic delivery and provides an electronic address to which such communications are to be electronically sent. Such notice would, for example, include notice of meetings. If the owner does not consent and provide an email address, notices would still have to be provided in person or by U.S. mail to that owner.
Q. If our condominium association adopts a rule permitting owners to consent to receiving notice by email, do we have to provide an owner's email address to other owners who properly request a list of owner addresses?
A. The addition of Section 18.4(s) of the Illinois Condominium Property Act also addresses this issue. It authorizes each unit owner to designate an electronic address or a U.S. Postal Service address, or both, as the unit owner's address on any list of unit owners that an association is required to provide upon request, pursuant to any provision of the Act or any condominium instrument. So, while an owner can consent to receive notice by email, and provide their email address to the association, that email address does not have to be provided to other owners. That is, owners who provide the association with email addresses can designate another address to be provided to owners when the law requires such information to be provided to an owner. That should ease the minds of owners who may be concerned about providing their email address to fellow owners.
Q. I understand that one of the new condominium laws will permit electronic voting in board elections. Please explain.
A. Section 18(b)(9)(B-5) of the Illinois Condominium Property Act has been added and provides for voting by acceptable technological means, in lieu of the use of proxies, in board elections. If an association adopts appropriate rules, unit owners may not vote by proxy in board elections, but may vote only by submitting an association-issued ballot in person at the election meeting, by any acceptable technological means. Acceptable "technological means" includes, without limitation, electronic transmission over the Internet or other network, whether by direct connection, intranet, telecopier or electronic mail. Electronic transmission means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient and that may be directly reproduced in paper form by the recipient through an automated process.
A similar procedure is available to common interest community associations under the Common Interest Community Association Act.
• 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.