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posted: 5/20/2017 6:00 AM

Owner can be charged for lost key

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Q. I lost the key to the common element cluster mailbox in my condominium association. I was advised that I must replace the mailbox lock. Is the association or owner responsible for this? Shouldn't I just have to pay for a new key?

A. An owner's responsibility here depends in great part on the language of the declaration. A condominium association is generally responsible for the maintenance, repair and replacement of the common elements, at association expense. However, the typical condominium declaration provides that the cost of maintenance, repair and replacement of the common elements that would otherwise be an association expense can be charged to an owner if the need for such maintenance, repair or replacement is due to the negligence of an owner.

Losing a key can constitute a negligent act of an owner. This would permit the association to charge the costs associated here to the owner who lost the key. Depending on what needs to be done to fix the problem, this may be as simple as a new key, but there may be circumstances that might require replacing the actual lock.

Similarly, if the declaration provides that the mailbox is a limited common element, and allows charges to owners of limited common element expenses, the association could perform the work and charge the cost to the owner served by the mailbox. Some declarations provide an alternative whereby the owner performs the maintenance, repair and replacement of the limited common elements. I favor an approach where the association does the work and charges the cost to the owner.

Q. This is about Section 18.4 (a) of the Illinois Condominium Property Act. Will you clarity this section? My interpretation is that any common element expenditure that is over 5 percent of the annual budget would be subject to a unit owner vote.

A. Clarification is in order here. Not every common element expenditure that is over 5 percent of the annual budget is subject to a unit owner vote. That said, certain common element expenditures over 5 percent of the annual budget may be subject to a vote of the unit owners.

Section 18.4(a) of the Condominium Property Act provides that expenditures to replace common elements or facilities do not automatically require owner approval. Further, replacement of the common elements may result in an improvement over the original quality of such elements or facilities.

It's the cost of the "improvement over the original quality of such elements or facilities" being replaced that may be subject to owner approval. If the "improvement" results in a proposed expenditure exceeding 5 percent of the annual budget, then (and only then) the owners have an opportunity to call a meeting to vote on the expenditure. Such an expenditure would trigger the ability of the owners to invoke a procedure to call a meeting of the owners to vote on the expenditure. Note though that if the improvement is mandated by law or is an emergency, the owners would not have an opportunity to vote.

If the expenditure (that results in an improvement over the original quality of such elements or facilities) triggers the owner vote opportunity, owners with 20 percent of the votes of the association can deliver a petition to the board within 14 days of the board action to approve the expenditure. The petition would request a meeting of the owners to vote on the expenditure. If such a petition is received, the board would have to call a meeting of the unit owners within 30 days of the date of delivery of the petition to consider the expenditure. However, unless a majority of the total votes of the unit owners are cast at the meeting to reject the expenditure, 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.

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