Summary of condominium property act changes for 2016

Laws were enacted in 2015, effective in 2016, affecting Illinois condominium associations and common interest community associations. Today's column will focus on the changes to the Condominium Property Act. Many of the changes appear to be more stylistic in nature, with only a few substantive revisions. Of note is the lack of any significant legislation to address the "Palm" decision.

• Section 18(a)(6) is amended to provide that each unit owner must receive a copy of the proposed annual budget at least 25 days prior to the adoption of the budget by the boards. The language previously said 30 days. This should make it easier for associations to avoid multiple mailings in order to also comply with the requirement that written notice of that board meeting be given to owners at least 10 and not more than 30 days before the meeting.

• Section 18(a)(9) is amended to deal with very limited issues raised by the "Palm" decision. Newly numbered subsection (A) expands what a board may discuss in a closed session to include "consideration of information relating to," in addition to the current discussion of, litigation, employment and a unit owner's unpaid share of common expenses. It also clarifies that any vote on matters discussed or considered in closed session must take place at a meeting of the board of managers or portion thereof open to any unit owner.

• Newly numbered subsection (B) provides that board members may participate in and act at any meeting of the board, in addition to being present in person, by telephonic means or by use of any acceptable technological means, as long as all people participating in the meeting can communicate with each other. Participation by phone or other acceptable technology constitutes attendance and presence in person at the meeting. This loosely borrows from the not-for-profit corporation act, that was applicable to condominiums.

• Newly numbered subsection (C) clarifies that any unit owner may record the proceedings at open meetings of the board of managers (and not other meetings) by tape, film or other means.

• Newly numbered subsection (D) provides that notice of every meeting of the board of managers must be given (it no longer says "mailed or delivered") to every board member at least 48 hours prior to the meeting, unless the board member waives notice of the meeting. This section was previously ambiguous as to whether such notice had to be mailed or delivered to unit owners as well.

• Newly numbered subsection (E) makes a stylistic change concerning the posting of board meeting notices. Notably, that section also adds that notice of every meeting of the board must also be given at least 48 hours prior to the meeting, or such longer notice as the Act may separately require, to each unit owner electronically who has provided the association with written authorization to conduct business by acceptable technological means. Moreover, to the extent that the condominium instruments of an association require, notice must also be given to each other unit owner who has not provided written consent to receive notice electronically, by mail or delivery, and that no other notice of a meeting of the board of managers need be given to any unit owner.

• Section 18(a) is amended to add a new subsection 21 that addresses concerns raised by the "Palm" decision as to how a board can make decisions in an "emergency." It states the board may ratify and confirm actions of the members of the board taken in response to an emergency, as the term "emergency" is defined in the Act. However, the board must give notice to the unit owners of the occurrence of the emergency event within seven business days after the emergency event, and the general description of the actions taken to address the event within seven days after the emergency event.

• Section 18.4(q) is amended to make a stylistic change. It requires a board to reasonably accommodate the needs of a unit owner who is a person with a disability (it used to say "handicapped") as required by the federal Civil Rights Act of 1968, the Human Rights Act and any applicable local ordinances in the exercise of its powers with respect to the use of common elements or approval of modifications in an individual unit.

• Former duplicate numbered section 18.8 that, among other issues, eliminated requirements for unit owner approval to initiate litigation, is renumbered as section 18.9.

• Section 27 of the Act concerns amendments to the association's declaration or bylaws. The section now provides that language in the condominium instruments that requires notice to (not just approval of) any mortgagees (and adds other lienholders of record as well) is valid. The board can amend the condominium instruments, without owner approval if there is an error, or inconsistency in a condominium instrument, such that they do not conform to the Act or to another applicable statute. The section previously just said "error."

Also, the section clarifies that any provision in a condominium instrument requiring or allowing unit owners, mortgagees or other lienholders of record to vote to approve an amendment to a condominium instrument, or for the mortgagees or other lienholders of record to be given notice of an amendment to a condominium instrument, is not applicable to an amendment to the extent that the amendment corrects an omission, error or inconsistency to conform the condominium instrument to the Act or to another applicable statute.

• Section 35 is added that provides that every condominium association must comply with the Condominium and Common Interest Community Ombudsperson Act and is subject to all provisions of the Condominium and Common Interest Community Ombudsperson Act. Notably, this new section is automatically repealed July 1, 2021. I'll discuss that legislation in a subsequent column.

• 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.