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posted: 3/19/2016 1:00 AM

Mailboxes are not to be used for informal correspondence

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Q. A unit owner in our association places correspondence to other owners directly into their individual mailboxes at the association. That is, he does not "mail" them and the correspondence does not include any postage. Is this permitted?

A. Technically, even though part of the common elements, the residential mailboxes are owned and regulated by the U.S. Postal Service.

The U.S. Postal Service Domestic Mail Manual states that "no part of a mail receptacle may be used to deliver any matter not bearing postage, including items of matter placed upon, supported by, attached to, hung from or inserted into a mail receptacle." In other words, the mailbox may not be used for anything other than for pieces of mail with postage attached.

The typical declaration provides that no unit owner shall permit anything to be done in the common elements that would "be in violation of any law." A unit owner's use of the mailboxes in violation of the law would permit the board to levy a fine as a violation of such a provision in the declaration.

Many associations do a similar mailbox drop to the individual unit owner mailboxes. So do note that the postal restriction on the use of the mailboxes would apply to both the owners and the association. That is another reason why associations should take necessary steps to permit notices to be issued to owners by email.

Q. I live in a common interest community association. The board of our association adopted a budget that includes more than a 50-percent increase in assessments. The proposed budget was not distributed to the owners, and the owners were not given any notice that the board was meeting to adopt the budget. We learned of all of this after the fact. Was this proper?

A. As described, the process followed by the board to adopt the annual budget and assessment was not proper. The Illinois Common Interest Community Association Act provides specific guidance regarding the budget and assessment-adoption process. It also describes the rights of owners with respect to assessment increases that are over a certain amount.

The board is required to provide each member of the association a copy of the proposed annual budget, together with an indication of which portions are intended for reserves, capital expenditures and repairs, and payment of real estate taxes, at least 30 days but not more than 60 days prior to the adoption of the budget by the board.

Further, the board must give members notice of any board meeting concerning the adoption of the proposed annual budget and regular assessments, within 10 to 60 days prior to the meeting.

Owners have an opportunity to vote on certain assessment increases. If an adopted fiscal year budget would cause the sum of all regular and separate assessments to exceed 115 percent of the sum of regular and separate assessments payable during the preceding fiscal year, unit owners can seek a vote to reject that budget. The board must call a meeting of the members when it receives a written petition by unit owners holding 20 percent of the votes in the association -- and that petition is delivered to the board within 14 days of the board action. The meeting must then be held to consider the budget or separate assessment within 30 days of the date of delivery of the petition. However, unless a majority of the total votes of the members are cast at the meeting to reject the budget, it is deemed ratified.

And owners may still have a defense to the payment of the assessment increase if the board's actions prevented the owners from being able to timely exercise their rights.

• 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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