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Election proxy may not have to be distributed by the board

Q. Our condominium association's annual election is coming up. The board has stated that only the proxy distributed by the board can be used at an election? I want to prepare my own proxy, and the board is telling me I cannot do this. Can I?

A. In general, it is my view that a condominium board cannot require that the association-issued form of proxy be the only proxy permitted to be used by an owner in an annual meeting. Section 18(a)(18) of the Illinois Condominium Property Act refers to what must be included in "any proxy distributed for board elections by the board." The inference is that an owner may prepare and distribute their own proxy. A proxy distributed by the board must give the unit owner the opportunity to express a preference for any of the known candidates for the board or to write in a name. Proxies distributed by an owner are not required to include these options.

I'm curious as to the rationale for the board's position. However, if the use of proxies in elections creates problems in an association, the board should consider adopting rules that would provide for mail-in balloting, or electronic voting, in lieu of proxies, as permitted by the condominium act.

Q. I bought a townhouse about a year ago. It tested positive for radon. I presented my plan to the board to mitigate the radon with an active fan and 3-inch PVC pipe running up the back of my unit. The board denied my plan because it did not want any cosmetic differences on the exterior of the units. The board then adopted guidelines stating that radon mitigation pipes must be run internally from the basement through both floors and out the roof. Is that a proper decision?

A. Radon is naturally occurring and may enter into a unit even in the absence of a defect or failure in the common elements. In general, the unit owner is responsible, at the owner's expense, to install and pay for a radon mitigation system for their individual unit. Radon mitigation techniques often involve the installation of equipment that vents radon gas through pipes to the exterior of the unit. These pipes most often run on the exterior of a building, but they can run through the interior of the unit and exit through the roof. Therefore, the association has a role in the mitigation process.

The typical association's governing documents prohibit an owner from making any addition or alteration to the exterior of the unit without the prior approval of the association. A provision of this sort would require the owner to obtain the approval of the board of the association to install a radon mitigation system on any portion of the exterior of the building.

If radon is detected in a unit in excess of acceptable levels, a request for approval to install a radon mitigation system should only be denied by the association if the system would not conform to federal/state regulations, or if the work is proposed to be performed by a nonlicensed mitigation contractor.

The board can require owners to submit detailed plans of the proposed mitigation system for its review and consideration, and to condition its approval on a variety of criteria. For example, the association can require that a professional, licensed radon mitigation contractor perform the work in conformity with applicable federal and state guidelines. And the impact on a roof warranty should be considered.

There are radon mitigation systems that vent through the exterior of a building and systems that vent through the roof. There are pros and cons to each, so the board is going to have significant discretion in approving an owner's proposal if both types of systems will work. Working together, a unit owner and board should be able to balance the interest of the unit owner to resolve a radon issue with the interest of the board in minimizing the aesthetic impact of efforts to accomplish the mitigation.

• 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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