Owners' approval not needed on certain expenditures

Q. Our declaration states that the board can approve certain expenditures without owner approval. Our five-person board approved a large expense that did not require owner approval. Upon further thinking, four of the board members want to negate that board vote and put the matter to a vote of the owners. The fifth board member says that would be inappropriate. Please advise, and thank you.

A. Initially, only a person on the prevailing side of a vote can generally make a motion for reconsideration, and the motion must generally be made at the meeting where the initial motion was made and approved.

That said, while the board can take an advisory vote of owners on an issue that requires board vote, the board can't abdicate its fiduciary responsibility by making decisions based on such an advisory vote.

There are any number of expenditures that, for whatever personal and self-serving reason, unit owners may not approve. The board has the difficult responsibility of making the tough decisions, based on what is in the best interest of the association, regardless of whether it is popular with the owners.

Q. Many of the owners in our condominium association spend winter months out of state, which is when we have our annual meeting. These owners typically vote through a proxy. Can owners fax in their proxy, or must the association receive the original?

A. This is addressed in Section 18(b)(9)(A) of the Condominium Property Act. To the extent the condominium instruments or rules adopted by the board expressly so provide, a proxy may be submitted by electronic transmission. However, any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the unit owner or the unit owner's proxy.

So, absent the rule or language in the declaration as described above, the owner would have to provide an original of the proxy and the faxed proxy could not be accepted. The board should consider adopting a rule that would permit the owners to submit a proxy via fax.

Q. Our declaration limits the size of dogs that can be kept in a unit to 35 pounds or less. The board has never enforced that restriction, and today we have at least two dogs over that weight limit. A prospective owner wants an assurance that it will be OK to have a dog over 35 pounds. Can the board issue such assurance?

A. Frankly, no, the board can't provide that assurance. I have participated in litigation that went on for years over a similar issue. An owner filed suit against the board because the board allowed dogs in violation of the declaration. The board was found in violation of the declaration for failure to enforce the restriction on pets, and now has to have all the dogs removed. There have been appellate courses lately that have ruled against boards who don't follow the declaration.

Here, the board is either going to have to enforce the pet-weight restriction, or amend the declaration to remove the restriction.

Q. Our community is self-managed. We have nine director positions that need to be filled at this time. A married couple wants to fill one position. Is there any reason why we cannot list the couple as running for a shared position on the board, or can a position only be served by one person?

A. There is no authority for two people to share a position on the board. Further, in general, only one of the multiple owners of a unit can serve on the board at one time.

• 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.