Not all board members are officers

Q. The declaration for our association discusses removal of officers and removal of board members. There are different procedures for both. Isn't an officer a board member? What is the difference between removing an officer and removing a board member?

A. This issue comes up frequently, and the distinction can be murky due to poorly worded governing documents. Officers are board members, but not all board members are officers. "Officer" refers to the president, secretary, treasurer, and vice president (if your documents provide for a vice president).

If one is removed as an officer of the board, that person would continue on as a board member. Another board member would be appointed by the board to serve in that vacant officer position. However, if a person is removed as a board member, they would be off the board entirely, creating a vacancy on the board. That vacancy could be filled by the board; however, in a condominium association, there is also a procedure for the board vacancy to be filled by the owners.

The typical language in a declaration permits an officer to be removed by the board at a board meeting. However, the removal of a member of the board typically must be approved by two-thirds (or more) of all unit owners in the association, at a meeting of the unit owners. Therefore, a board member isn't removed from the board by fellow board members, but rather it requires unit owner approval. An association's governing documents may permit removal with or without cause. However, it is unlikely that owners would consider removal of a board member without knowing, and approving, the reasons.

Q. The rules for our association require rules-violation complaints be submitted on a specific form that is attached to the rules. In this era of email, owners often report rules violations in emails to board members. Is this an acceptable substitute for the complaint form?

A. Owners complaining of rules violations should be asked to submit their complaint on the appropriate form. Accepting complaints in an email risks that important information included in the complaint form will be omitted. The completed complaint form could be emailed to the association, if you permit that (some associations require communications from owners to be sent by regular mail).

As a slight variant, the association could consider accepting complaints in the body of an email, and not require the form to be completed and attached, if the content of the complaint form is essentially duplicated in the body of the email.

However, I would urge the association to set up a separate email account for the association and not have these communications with unit owners on the personal email of board members (or through the board member's work email) that could be discoverable in litigation. That is, a board member would not want opposing counsel in litigation fishing through their personal email account or that of their employer!

Q. My association is considering amending the declaration to restrict leasing of units. I don't lease out my unit now, but I may want to in the future. Since leasing of units was permitted when I bought my unit, would I be bound by this amendment?

A. Yes. Owners purchase units subject to the ability of the association to amend the governing documents. An association can amend the declaration to restrict leasing of units, if the association follows its amendment procedures described in the declaration, and the amendment would be applicable to all owners.

That said, the amendment could include a "grandfather" provision of some sort. A "grandfather" provision permits circumstances existing at the time of the amendment to continue. Specific circumstances that are grandfathered would have to be described in the amendment.

• 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.