Board elections must be fair, not perfect
Q. We followed the declaration and the governing statute in regard to our recent annual meeting to elect directors. However, we did make some minor errors at the meeting that did not affect the outcome of the election. An owner in our association is challenging the annual meeting of our association because of these minor errors. He doesn't dispute the outcome of the annual meeting; he only contends the election has to be error free. Does an election in an association have to be error free?
A. Associations should strive for an error-free annual meeting, and associations do need to follow the declaration and governing statutes in connection with annual meetings. However, mistakes may occur and, in general, an election must be "fair," not "perfect." An election that is not "perfect" can still be "fair." I don't know the errors that were made in your annual meeting, but it will be a question of fact in each individual situation whether an election is "fair."
Q. I'm a unit owner in a homeowners association. I asked the board for the name and phone number of the association's attorney so that I could ask him a question concerning the association. The board refused, saying that I could not seek guidance from the association's attorney. Since I am a member of the association (and my assessments pay the association's legal fees), shouldn't I be able to speak with the association's attorney?
A. The board was within its rights to withhold its consent for you to speak with the association's counsel. In a "nutshell," the rules of professional conduct that guide lawyers in Illinois provide that "A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." In the association setting, the attorney's client is the association, acting through its board of directors. The attorney does not represent the unit owners of the association, as the interests of the unit owners may be adverse to the association. A unit owner in an association needs to retain their own counsel to address their legal issues concerning the association.
Q. An owner in our condominium association installed a heat pump and condenser in the common elements outside his unit. This was done without the permission of the association. This equipment is located next to our unit, and it is extremely loud and unsightly. Can an owner install this type of equipment on the common elements?
A. The typical provision in a declaration for a condominium would prohibit an owner from installing equipment of this nature on the common elements without approval from the board. Further, the typical declaration for a condominium would prohibit an owner from engaging in conduct that is an annoyance to other occupants. The board should investigate the potential violations of the association's governing documents. The owner could be required to remove the equipment if the board finds the installation and operation of the heat pump and condenser violate the declaration.
Q. The board of our condominium association is considering several management companies to manage the association. Does the board have to discuss this at an open meeting with owners in attendance?
A. The Condominium Property Act permits the board to meet in executive (closed) session to consider information regarding appointment, employment or dismissal of an employee. In a case addressing similar language in the Illinois Open Meetings Act, the appellate court interpreted "employee" to include independent contractors. Therefore, the board can meet with and discuss prospective independent contractors in an executive (closed) session of a board meeting. Note that any decision concerning whether to hire the management company would have to be made at a portion of a board meeting open to owners.
• 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.