Use of email to discuss board matters carries risks

Q. Thank you for your summary of new laws for 2017. It's very helpful! I have a question about use of email by our board. I understand that a condominium board can now meet outside of a board meeting, and without notice, to discuss matters that a board is permitted to discuss in a "closed session." Does that mean that a board can also discuss those matters by email?

A. I assume you are interested about one of the holdings in the Illinois appellate court decision in Palm v. 2800 Lake Shore Drive Condominium. There, the court found board discussions regarding association maters by email was in violation of Section 18(a)(9) of the Condominium Property Act. The rationale was that discussions regarding association business by board members must take place at a board meeting, with proper notice.

As amended, Section 18(a)(9) of the act permits the board to meet outside of a board meeting, and without notice, to discuss matters that a board is permitted to discuss in a "closed session." The issues that can be addressed in these gatherings are described in detail in that section of the act. Note that the Illinois Common Interest Community Association Act was amended in the same manner.

An argument can be made that board members can discuss by email that which they are expressly now permitted to meet to discuss outside of a board meeting. However, one of the benefits of being able to meet in "closed session," either as part of a board meeting or other gathering of the board that is now permitted, is to avoid creating a record of the discussion. Emailing creates a record of that discussion that might be discoverable in litigation. I could not suggest taking that risk. It's much more prudent to meet in person or by a phone conference instead.

Q. I bought a townhouse-style condominium several years ago. I recently added a couple of feet of brick pavers around my patio. I received a letter from the property manager that this violated a declaration covenants for the association. I've never seen this declaration, and I contend that because of that it would not apply to me. Am I correct?

A. You are not correct. The declaration of covenants that created your association was recorded by the developer in the office of the recorder of deeds for the county where the townhouse is located. The declaration includes the restriction that precludes you from adding to the patio serving your townhouse. The recording of the declaration provides notice to the world as to its content. As such, you are governed by the declaration and its restrictions, whether or not you have ever received or reviewed a copy.

Note that the title commitment/policy for your townhouse purchase would reference the declaration. Further, the Condominium Property Act includes a procedure for prospective purchasers to obtain a copy of the recorded declaration from the association.

Q. I just noticed that my annual assessment went up about 9 percent from last year. Is there a limit to assessment increases that can be imposed by the board?

A. You may be surprised to learn that a condominium or common interest community association board can increase assessments year over year by any amount. However, owners do have recourse if an adopted budget would result in the sum of all regular and separate assessments payable in the current fiscal year exceeding 115 percent of the sum of all regular and separate assessments payable during the preceding fiscal year. But the recourse must be exercised in a timely manner.

Unit owners, in either a condominium or a common interest community association, with 20 percent of the votes of the association, can deliver a written petition to the board within 14 days of the date the board adopted the budget. The petition would require the board of managers to call a meeting of the unit owners within 30 days of the date of delivery of the petition to consider the budget. However, unless a majority of the total votes of the unit owners are cast at the meeting to reject the budget, it is ratified.

• 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.