How to cancel a board meeting

Q. Can you please inform me of the notification requirement for canceling a regularly scheduled condominium board meeting? Do we have to send out a mailing notice?

A. Notably, the Condominium Property Act does not address the issue; it only addresses notice of the meeting. The declaration for your association, in compliance with the act, provides that notice of board meetings is to be mailed or delivered to board members, and posted at the property, at least 48 hours prior to the board meeting - notice isn't mailed or delivered to unit owners.

I would suggest that notice of the cancellation be mailed or delivered to board members, and posted at the property, as soon as possible before the scheduled board meeting.

Q. Our condominium association has listed the entire building for sale. Can an individual unit owner list their unit to sell on their own now that the board has taken this action?

A. The less than 300-word statute that governs the sale of the property (Section 15 of the Illinois Condominium Property Act) simply does not address this issue. There is no other applicable statute or case law, as this is a transaction created and governed by Section 15.

Any buyer of a unit during the process of a sale under Section 15 would take their interest subject to the right of the owners in the association to approve a sale of the entire property. I cannot realistically imagine anyone purchasing a unit if they are aware of the potential sale of all of the units, the listing of the property for sale, and especially after the owners have voted to approve the sale.

A seller who does not disclose to a prospective purchaser and to a real estate agent that the entire property has been listed for sale (or disclose the current status of the transaction, e.g., contract received by association; contract approved by board and subject to owner approval; contract approved by owners) is probably engaged in an actionable failure to disclose a material fact.

As a practical matter, it is unlikely that an owner is going to be able to sell their unit during this process. That is why the board should keep owners advised of the status of this matter, and include relevant information in the 22.1 disclosure provided to prospective purchasers. This information is not specifically among the disclosure items required by that section, but that would be a good vehicle to provide the information.

Q. We have our election of board members coming up shortly. Most of our unit owners do not attend the meeting, but rather submit a proxy. Many of the proxies name "the board" as the proxy holder. These proxies frequently don't instruct the board to vote for any particular candidate, and give "the board" the complete discretion to vote for candidates of the board's choosing. Does the board have to meet in a board meeting to decide who among the candidates to vote for?

A. Yes; in this situation, the board needs to hold a meeting to decide for what candidates the votes are to be cast under these proxies. The board also needs to designate who among the board members will actually cast the votes on the ballot. This is all very cumbersome. It is much easier if an owner identifies a specific individual as the proxy holder rather than a group like "the board." For example, an individual board member, or officer (e.g., board secretary) could be named as the proxy holder rather than "the board."

Note too that while a proxy distributed by a condominium must permit the owner to designate a primary proxy holder, the proxy could also include a specified secondary proxy holder. The secondary proxy holder would vote on behalf of the owner if the primary proxy holder is not at the meeting, or if the owner did not designate a primary proxy holder. Many association proxies include the "Secretary" as the secondary proxy.

• 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.