Association can act to protect property from damage
Q. I recently received a warning from my association advising me I better get rid of my car since it is leaking oil and making the driveway "dirty." After I was done laughing over their complaint because "it's a driveway," I began to question how far they can take this? I did get rid of the offending car, but the "stains" on the driveway remain.
A. It may be "just a driveway," but imagine what the property could look like if damage of this nature were widespread. One of the things many owners in community associations are alarmed to learn is that their actions may be subject to the scrutiny of a board of directors obligated to enforce the association's governing documents.
Some boards can overreach. It sounds like the board of your association has proceeded in a modest and informal manner, having issued just a warning letter when other actions were available.
There are a variety of remedies available to an association under these circumstances. Each remedy should be carefully considered by a board, and invoked in proportion to the violation. These remedies may include, but are not limited to, levying a fine, or repairing the damaged driveway and charging the cost to the owner who caused the damage. Litigation may be appropriate for continued or a serious violation that has caused damage that is expensive to repair.
Some owners may object to being the subject of a board's scrutiny, and some board members can absolutely be overzealous and nitpicky. However, board members have a fiduciary duty to enforce governing documents and to address damages caused by an owner. Enforcement of violations can be the most trying part of being a board member.
Q. I have heard different opinions whether our condominium association can impose a late charge every month that an owner's account has an open balance, even if the assessment for that month was paid on time. What is your take on this?
A. The board may impose charges for late payment of a unit owner's proportionate share of the common expenses. However, Illinois case law states that condominium associations may charge a late fee only for the month that an assessment is not paid, not paid in full, or not paid on time. Therefore, the practice of charging a late fee whenever there is an open balance on an owner's account at the end of a month, even if the assessment for that month was paid on time, would violate case law.
Q. A unit owner in our association is refinancing his unit, and the owner has requested recorded copies of the association's declaration and all amendments to forward to the lender. The board does not have all of these documents. Is the association required to provide these documents? If so, can the association charge the owner the fee charged by the recorder of deeds to obtain copies of the documents?
A. The board of an Illinois condominium, master or common interest community association is obligated to maintain certain records for examination and copying by owners. These records include copies of the declaration and all amendments. These would need to be complete copies bearing the stamp of the recorder of deeds. The files of many associations include unsigned copies of the declaration, or copies without all of the exhibits, or do not include amendments to the declaration.
So, yes, the association is required to provide the owner with copies of the recorded declaration and all amendments, as requested. Further, the board has to obtain these documents from the recorder's office, at association expense, if it does not already have them. The board can, however, charge the owner a reasonable fee for copying the documents.
• 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.