When board meetings should be open

Q. The board of our condominium association meets from time to time with the association's attorney. Does this meeting have to take place in a portion of our board meeting open to all unit owners?

A. In general, meetings of the board of managers must be open to any unit owner. The Condominium Property Act does provide three exceptions to this general rule. The board can meet in "closed session" (I) to discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent, (ii) to consider information regarding appointment, employment or dismissal of an employee, or (iii) to discuss violations of rules and regulations of the association or a unit owner's unpaid share of common expenses.

If a meeting between the board and counsel includes any of the above described categories, the meeting can clearly be in a "closed session" of a board meeting. Note, though, that there is no express exception to the open meeting requirement for a meeting with counsel. Nonetheless, I take the position that since discussions between the board and counsel wherein the attorney is providing legal advice are subject to the attorney-client privilege, and because a discussion at an open meeting could waive that privilege, a discussion with counsel where legal advice is being discussed can generally take place in "closed session" of a board meeting.

Q. The association's lien for unpaid assessments was extinguished as the result of a foreclosure of an owner's unit. The owner owed thousands of dollars at the time, even after being able to collect assessments from the new owner under the "six-month rule." Traditionally, our association would just write-off the unpaid sums, and be done with it. Is there any way to collect unpaid assessments from a former unit owner?

A. Unpaid assessments from a former unit owner can be collected from a former unit owner, even after a foreclosure a sale. This can be through collection of unpaid sums through a personal judgment obtained against the owner while he was an owner. Or, the association can pursue a breach of contract action against the former unit owner, for sums not included in a previously obtained judgment.

Associations are continuing to see assessment liens being extinguished when a unit is sold at a judicial sale at the conclusion of a mortgage foreclosure. That doesn't necessarily mean it's the end of the road for the association in terms of collecting unpaid amounts due from a former owner. However, associations need to carefully consider the facts and circumstances in each situation to evaluate whether it should consider seeking collection of unpaid assessments from former unit owners.

If the board knows where the former unit owner lives, works, or generally can be located, and if the former unit owner has sufficient assets from which to satisfy any judgment that the association has or may obtain, pursuing the collection may be worthwhile for the association. Some of this information can be obtained, at relatively modest expense, through an investigative service. Before an association simply writes off the amount of assessments due and owing from a former owner, the board should carefully consider the option of pursuing the former owner.

General: I receive feedback on the column from readers, and I appreciate all of the comments! But let me underscore that the purpose of the column is to provide general and limited information on the topics discussed. This is intended to assist board members, owners, and property managers recognize when a situation creates a legal issue. However, the column is not a substitute for consultation with counsel, and the inherent constraints of this format do not permit exploration of every facet of a matter. Do consult with counsel familiar with association law to address specific issues.

• 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.