Question boards when they make exceptions to rules

Q. We live in a 30-unit condominium outside of Chicago. The rules for the association provide that dogs are not allowed to be kept in the building. Recently, the board voted to allow an owner to have a dog for ten months. Did the board have the authority to grant the owner this permission?

A. For purposes of my response, I am assuming the board in this instance has the authority to prohibit dogs by way of rule as opposed to an amendment to the declaration. With that caveat, the board would not generally have the authority to grant an exception to its rules, and to do so could be a breach of its fiduciary duty. It may be possible that the board was granting some sort of permitted reasonable accommodation to this owner under fair housings laws - such as for a service animal. For that reason, it would be a good idea for you to make an inquiry to the board as to the reason for the decision.

Q. The board of our condominium has received an increased number of complaints about tobacco smoke that enters one unit from another. It appears that there are no reasonable steps that can be taken to prevent smoke from traveling from one unit to another. What can the association do to prohibit smoking in the individual units?

A. In order to prohibit smoking within the individual units, the declaration of condominium should be amended to expressly prohibit smoking. This is an increasingly popular amendment, and bans on smoking in units are gaining traction throughout the country.

Q. The governing documents for our association do not prohibit smoking. Can the association nonetheless take legal action against an owner about whom the association receives complaints?

A. The board could consider tobacco smoke that migrates from one unit to another (or to the common elements) to be a violation of the typical provision in an association's governing documents that prohibit "nuisance" or "annoyance." If the association does not have a "no smoking" provision in its declaration, and has to rely on the "nuisance" provision, the association has to prove both that a resident is smoking and that it is a nuisance. If an association has a "no smoking" provision in its declaration, a violation is proven if the resident is smoking. So, the "no smoking" language is the preferred route, and the association should consider the amendment discussed in the question above.

Q. The annual assessments in our condominium association are payable monthly. However, some very large budgeted expenses are coming up, and our cash flow from monthly assessment income may not be adequate during this period of time. Can the board offer a discount to owners who pay their annual assessments early and in a lump sum so we can get over this cash-flow hump?

A. The Condominium Property Act expressly provides that the board shall have no authority to forebear collection of assessments. As a result, the board cannot offer an assessment discount as an incentive to owners who pay early.

Q. The 2015 annual meeting for our association took place a couple of months ago and several new board members were elected. I recently requested a copy of the minutes of the 2015 annual meeting. I was told by the board that the minutes of the annual meeting have not yet been prepared or approved. When is the board required to make the minutes of the annual meeting available to the owners?

A. Minutes of the annual meeting of the association are approved by the unit owners at the next meeting of the owners; they are not approved by the board. This typically occurs at the next annual meeting, as this is frequently the only meeting of the owners. Once the 2015 annual meeting minutes are so approved, they should be made available for inspection and copying by 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.