Committee appointments belong to association board

Q. We are an association of townhouses. Our association documents state, under the committee section, that the board shall appoint committees, that each committee shall have a board member serve on the committee, and that all committee members shall serve at the pleasure of the board.

It has been the practice for the committee chairman and the committee itself to appoint members to serve on a particular committee. Members of the board are trying to force one of our committees to accept a member who the committee does not want to serve on its committee.

We have interpreted the declaration to mean that the board doesn't appoint committee members, but can remove them at will. Since the board has not ever appointed committee members, the members of the committee feel that precedent should rule here in the appointment of committee members.

A. "Just because it's always been done that way" is not binding legal precedent. I read that somewhere but can't recall where. So I don't know who said it, but it's absolutely correct.

The board of directors of your association, and not the committee chair and not the committee members, appoint members to a committee. The Illinois General Not for Profit Corporation Act governs the issue of committees. If the articles of incorporation or bylaws of the association provide for committees, a majority of the directors of the association may create one or more committees, and appoint directors or such other persons as the board designates to serve on the committee or committees. Each committee must have two or more directors, a majority of the members of a committee must be directors, and all committee members serve at the pleasure of the board.

Keep in mind that the board could seek the input of a committee with respect to new members, and the committee could make recommendations to the board concerning new members. However, the decision as to who is appointed to the committee rests solely with the board. Note, too, that appointment of members to a committee must be done at a meeting of the board, and reflected in the meeting minutes.

Q. The amended and restated declaration for our condominium association has a different percentage of ownership allocation for one of the units than was set out in the original declaration. As a result, the total percentage of ownership does not equal 100 percent. What can be done to correct this?

A. If the percentages of ownership in the common elements set forth in the original declaration did not equal 100 percent, an amendment to the declaration would be required to correct this problem. Section 27 of the Illinois Condominium Property Act describes the procedure to amend the declaration when the percentages of ownership do not equal 100 percent. However, based on case law interpreting Section 27, approval of all of the owners in the association would be required to change the percentages so that they equal 100 percent. If this is impractical, and it often can be if an owner's percentage would go up, there is also a procedure available whereby the board could seek a court order to change the percentages of ownership of the units so that they equal 100 percent.

On the other hand, if the percentage of ownership was correct and equaled 100 percent in the original declaration, and there is simply a typographical error in the amended and restated declaration, a procedure may be available that would permit the board to make a corrective amendment, without unit owner approval. This whole matter is potentially very complicated. The board should consult with legal counsel well versed in association law.

• 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.