Association must take specific steps to control leasing
Q. The declaration for our association permits the leasing of units. We don't want to prohibit leasing. However, can we impose a rule that requires an owner to own and reside in the unit for a year before leasing? Many of the associations in our area have adopted such a rule.
A. I receive a lot of questions about leasing and restrictions on leasing. The Illinois appellate court decision from Feb. 3, 2016, Stobe v. 842-848 West Bradley Place Condominium Association, essentially states that if the declaration permits leasing, any restriction on leasing must be by way of an amendment to the declaration, and not by a rule.
However, a rule can be adopted to restrict leasing if (but only if) the declaration is silent on leasing.
Since the declaration for your association permits leasing of units, the proposed restriction would need to be established by an amendment to the declaration, and not simply by a rule adopted by the board.
The associations that have imposed the restriction of which you speak by way of rule (rather than an amendment to the declaration) either ignore the law or are governed by a declaration that is silent on leasing.
Some association boards choose to adopt by rule that which they know needs to be by amendment, and "hope" they are not challenged. That philosophy, on this and other issues where a board ignores the law or its governing documents, has become risky in recent years given the bounty of Illinois appellate cases that have ruled against boards that don't follow their governing documents or the law.
Q. The board of my homeowners' association holds monthly meetings. No advance notice of the time and date of the January meeting was provided to the homeowners, as is required by our governing documents. Four days after this January board meeting, the minutes of the previously held annual meeting of the owners was received. In those minutes, the time and date of the January board meeting was stated. Does this after-the-fact notice constitute proper notice? Was it proper for the board to hold the January meeting?
A. Notice of a board meeting has to be issued before the meeting, not after the meeting. Failure to give proper notice of a meeting potentially invalidates the meeting and all action taken at the meeting.
Q. Does our Illinois condominium have to give notice of a board meeting when the board meeting will be limited to a permitted closed session, even when no vote will be taken?
A. While portions of board meetings are permitted to be closed to the unit owners, it is still a board meeting. As such, notice of a board meeting must be provided as required by the association's governing documents and statute.
However, it is no longer necessary for a condominium board to hold a meeting to discuss matters that can be discussed in "closed session." That is, an amendment to the Condominium Property Act now permits a board to meet outside of a board meeting and without notice or attendance by owners if the gathering is held to discuss (but not vote on) matters that are allowed by law to be discussed in a closed session of a board meeting.
Q. There are multiple individual buildings in our condominium association. We would like each building to have a representative on the board. Can our governing documents be amended to require that at least one board member be elected from each of the buildings?
A. No. The Condominium Property Act provides that members of the board are to be elected at large from among all of the owners.
• 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.