What's the correct number of board members?

Q. The declaration for our condominium association says the board should consist of five members. The bylaws say the board should consist of three members. How do we reconcile this difference, and what is the correct number of board members?

A. The Condominium Property Act resolves this inconsistency. In general, in the event of a conflict between the provisions of the declaration and the bylaws, the declaration prevails. However, if the declaration is inconsistent with the Condominium Property Act, the language of the act would control. This is set forth in Section 4.1(b) of the act. The law does not mandate the number of board members. So, in your situation, the five members provided for in the declaration would control.

Note, too, that the board can adopt an amendment to the condominium instruments, without owner approval, to correct this error that results in the inconsistency between the declaration and the bylaws.

Q. I live in a common interest community association of single-family homes. The association is responsible only for maintenance, repair and replacement of certain "common properties," like a private road. The association is not responsible for any maintenance, repair or replacement on each owner's privately owned lot or home. Recently, the board entered into a contract with a company to spray the individual privately owned homeowner lots for mosquitoes. Does the board have this authority?

A. If the governing documents for the association limit the association's responsibility to the common properties, the board would not have the authority to enter into a contract for services to be provided to the privately owned homes and lots. Such an undertaking would generally be beyond the scope of the board's authority and arguably a breach of fiduciary duty, and the entry onto the individual lots to perform the service could be a trespass.

A better approach would be for the board to negotiate a discounted rate with this vendor for service to individual owners. The board would then notify owners of the discount and the benefit of the service to the owners and to the community, and strongly encourage owners to enter into an agreement with this vendor.

Q. Our association obtained a judgment against a unit owner and an order of possession resulting from the owner's failure to pay assessments. The order included an award of the association's attorney's fees and court costs. We incurred additional attorney's fees after the judgment was entered. The unit owner has tendered a check to the association for the amount of the judgment, as well as assessments that accrued since the date of the judgment. However, the owner has not included the post-judgment attorney's fees, claiming he does not need to pay them to have possession of the unit returned to him. Is the owner correct?

A. The owner is not correct. This issue was recently addressed by the Illinois appellate court in State Place Condominium Association v. Magpayo.

The opinion addresses the issue of whether a unit owner in a forcible entry and detainer lawsuit needs to pay post-judgment attorneys' fees to regain possession of his unit. In a case from many years ago, the appellate court had stated that an owner did not have to pay post-judgment attorneys' fees to regain possession of his or her unit.

The appellate court here noted that the Condominium Property Act had been amended since the prior appellate court case on the attorney's fees issue, and essentially reverses the prior appellate court decision. So, "yes," an owner must bring their account current, including post-judgment attorneys' fees, to regain possession of the unit after an order of possession is entered against him or her.

This is great for associations, as it avoids the need to file a second suit to collect the post judgment attorney's fees.

• 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.