Q. The bylaws of our association prohibit the parking of any "business" vehicles in driveways. A plain panel van, with business license plates, has been parked in a driveway for months. When I complained, the board responded by saying it is not a bad looking van. Should the association ask the resident to either remove the van from the driveway or to park it in the garage as permitted by the association bylaws?
A. Language that prohibits business vehicles from parking in driveways is generally intended to address aesthetic issues. When I think of a "business" vehicle, I think of a vehicle with writing or a graphic design on it and/or that carries equipment like ladders on the exterior or that is visible from the exterior. One panel truck could be a business vehicle, while another may be a person's personal vehicle.
My point is that what constitutes a "business" vehicle may be subject to interpretation if the bylaws don't provide further guidance. But the license plates alone should not necessarily determine the issue. For these reasons, the board should adopt rules to implement this language, and the rules should clearly define what constitutes a business vehicle.
Q. I am a unit owner in a common interest community association. Several owners have delivered proxies to individuals who are not members of the association. The people who hold the proxies contend they have the right to attend meetings of the board of directors of the association, and to participate in a dialogue with the board at the meetings. Does a proxy, which I associate to a voting process, permit the proxy holder to attend meetings of the board and to participate in the board meeting?
A. The Common Interest Community Association Act provides for voting by a member of the association by proxy. A proxy in a common interest community association can generally be given to any person; however, the association's governing documents could seemingly limit that. Nonetheless, a proxy does not give the holder of the proxy general rights of a member of the association.
The proxy holder can attend the meeting of the members wherein the proxy is to be exercised. However, the voting proxy would not give the holder of the proxy the right to attend board meetings and/or participate in the homeowner forum portion of the association's board meeting.
Q. Control of our condominium association was recently turned over to the unit owners by the developer. The declaration of condominium requires the creation of a reserve fund for replacements. The documents provided by the developer at turnover indicate the developer did not establish a reserve fund while in control of the association. Was the developer required to establish a reserve fund for the association?
A. The developer is not excused from establishing a reasonable reserve during the period of developer control of the association. Failure of the developer to establish a reasonable reserve while in control of the association is a breach of its fiduciary duty. I would contend that the developer is now responsible to pay what would have been its share of a reasonable reserve on unsold units, beginning from the date of the first conveyance of a unit in the association.
Q. The board of our association approved the annual budget at a board meeting. The budget includes line items for various projects. Since the proposals the board is now evaluating are for budgeted projects and within the budgeted amount, does the board have to approve proceeding with the work at a board meeting?
A. The board needs to review the proposals and vote to approve the specific project and contract at a meeting of the board for which proper notice was provided. The approval of the budget does not itself constitute approval of contracts for budgeted projects.
• 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.