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posted: 12/5/2015 1:00 AM

Vote determines election when term lengths differ

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Q. A board member in the first year of a two-year term resigned a few months before the annual meeting. That vacancy will be filled at the annual meeting, during which two other board positions (each with a two-year term) will be filled. There are four candidates for the three positions. How do we determine who will be elected to the two-year terms, and who will be elected to the one-year term?

A. This is a situation that arises fairly often, and is easy to address. Here, the two candidates receiving the highest number of votes would be elected to the two-year terms, and the candidate receiving the next highest number of votes would be elected to fill the remaining one-year term of the board member who resigned. It's a good idea to spell this all out in the notice of the annual meeting, and to restate it at the annual meeting. The minutes of the meeting need to be carefully prepared to reflect who was elected to what term, as that is often overlooked and creates confusion in the next election.

Q. There were five candidates for four seats on the board of directors of our association at the last election. There was a tie vote between two candidates for the last seat on the board. How should we have resolved who was elected to this seat?

A. This can be handled in a number of ways. First, one of two candidates who tied for the seat could concede the position to the other. Or, the two who tied could agree to resolve the tie by a "coin flip" or other similar game of chance -- that is a method used in some local municipal elections. Failing this, a meeting of the owners could be held to conduct a "runoff" election between the two candidates who tied for the seat. Although this does not come up all that often, this is one of those situations that could be addressed in the association's election procedure rules.

Q. I showed up at the annual meeting for our condominium association with six proxies given to me by other owners. I was advised by the election inspectors that owners were not permitted to vote by proxy, and that an owner could only vote in person or by mail in ballot. Was this correct?

A. Section 18(b)(9)(B) of the Illinois Condominium Property Act permits the board to adopt a rule that provides that unit owners may not vote by proxy in board elections. The rule would further provide that owners may vote in the election only by submitting an association-issued ballot in person at the election meeting or by submitting an association-issued ballot to the association or its designated agent by mail or other means of delivery specified in the declaration. If the board followed the appropriate procedure to adopt such a rule, then the election inspectors were correct.

Q. We are a smaller association and do not have a property manager. The board has hired a certified public accountant to receive assessments from owners and to pay bills for the association. Does the accountant providing these services to the association need to be licensed under the Illinois Community Association Manager Licensing and Disciplinary Act?

A. The functions you have described are generally the functions of a community association manager who must now be licensed in Illinois. However, there is an exception to the license requirement for certified public accountants if they are engaging in the practice for which they are licensed under another Illinois law. A licensed CPA would not have to obtain a license under the Community Association Manager Licensing and Disciplinary Act to receive assessments from owners and to pay bills of the association.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. 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.

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