This is the final installment in a three-part series.
On Aug. 24, Gov. Bruce Rauner signed HB0189, and it is now known as Public Act 100-0292. The law amends both the Common Interest Community Association Act and the Illinois Condominium Property Act. The changes become effective Jan. 1.
This is the third of three columns that summarize the changes. Discussion of changes to the Condominium Property Act continues today.
Section 19 governs the books and records that must be maintained for examination and copying by unit owners. Subsection (a) (7) is amended to provide that an association board must maintain a list of the email addresses and telephone numbers of all members for examination and copying by owners, if requested for a purpose that relates to the association. Previously, only names and addresses were required to be maintained. This new language could potentially conflict with, and needs to be read in conjunction with, Section 18.4(s), which permits an owner to consent to receive notices by email, but permits an owner to designate an electronic address or a U.S. Postal Service address, or both, as the unit owner's address on any list of members or unit owners that an association is required to provide upon request, pursuant to any provision of the act or any condominium instruments.
Subsection (a) (9) is amended to seemingly make more of a stylistic change than anything else with respect to the books and records of account that the association must maintain for examination and copying by owners.
Subsection (b) is amended to expand the categories of documents that an owner is entitled to examine and copy by simply making a request in writing. An owner previously had to recite a proper purpose in order to examine books and records in Section 19(a) (6) and (9). This will make it easier for owners to obtain the books and records identified in these subsections.
Subsection (d-5) is added to define "commercial purpose" as the use of any part of a record or records described in Section 19(a) (7) and (8), or information derived from such records in any form, for sale, resale or solicitation or advertisement for sales or services.
Subsection (e) is amended to eliminate the requirement that an owner state a "proper purpose" to examine books and records in Section 19(a) (6), (7), (8), and (9). However, as a condition of exercising the right to examine books and records in Section 19(a) (7) and (8), the board may require the requesting unit owner certify in writing that the information will not be used for any commercial purpose or for any purpose that does not relate to the association.
The amendment also permits the association to impose a fine against any person who makes a false certification. The amendment removes the provision that states that in any action to compel examination of records, the burden of proof is on the unit owner who requested documents to prove he or she is requesting the records for a proper purpose.
Importantly, the time frame within which the board must respond to a request for records is reduced to only 10 business days; the law previously permitted a board to respond within 30 business days.
The amendment also makes a change such that the board may, but is not required to, charge the actual cost of retrieving and making records available for inspection and examination, or the actual costs of reproducing the records, to the requesting owner. As a result, charging these costs is no longer mandatory.
The section provides that if the condominium instruments require the approval or consent of any mortgagee or lienholder of record to an amendment of the condominium instruments, the mortgagee or lienholder of record is deemed to have approved or consented to the request unless they deliver a negative response within 60 days of the mailing by certified mail of that request for approval.
Adds new subsection (a) that defines "combination of any units." Importantly, in an attempt to overcome the 2011 appellate court decision in Picerno v. 1400 Museum Park Condominium Association, subsection (a) and new subsection (e) underscores that the combined unit can be granted the exclusive right to use as a limited common element, a portion of the common elements within the building adjacent to the new combined unit (for example, without limitation, the use of a portion of an adjacent common hallway). This can be done by the board, and does not require unanimous approval of all of the owners in the association. The language provides that if units are combined, the exclusive right to use, as a limited common element, any portion of the common elements that is not necessary or practical for use by the owners of any other units is not a diminution of the ownership interests of all other owners and does not require the unanimous consent of all unit owners under Section 4(e).
Associations should speak with their legal counsel to determine the impact of these changes in the law on their daily operations and to assist in amending their governing documents to conform to these changes.
• 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.