Shortfall often made up in next budget

Q. It looks like our condominium association will end the year with an operating account deficit. What can the board do to make up this shortfall?

A. The board needs to review the association's declaration to determine whether it addresses how to handle the deficit.

However, the Illinois Condominium Property Act has been amended, effective Jan. 1, 2018, to add a new Section 9(c) (5). Among other matters, this new section addresses operating account deficits. It provides that if the fiscal year ends in a deficit, then to the extent there are no contrary provisions in the declaration and bylaws, the board has the discretion to address the deficit by incorporating it into the budget for the following year.

Q. I understand that Section 19 of the Condominium Property Act has been amended to require an association to maintain owner email addresses and to provide owner email addresses to other owners on request. I don't want my email address to be distributed to other owners. Do I understand the change in the law correctly?

A. Section 19 of the Illinois Condominium Property Act governs the books and records that must be maintained for examination and copying by owners. Section 19 has been amended, effective Jan. 1, 2018.

Subsection (a) (7) has been amended to provide that the board must maintain a list of the email addresses and telephone numbers of all members for examination and copying by unit 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) of the act. That section 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.

So, in reading the sections together, it is my view that an association only has to provide an owner's email to another owner making a request for this information if the association has adopted a rule permitting owners to consent to receive electronic communications, and if an owner has consented and designated an email address as the unit owner's address on any list of members or unit owners that an association is required to provide upon request. Otherwise, in my view, an association would not need to provide owner emails to other owners.

Q. We have difficulty recruiting candidates for the board of our association. What is the minimum number of board members required for an association?

A. A minimum of three board members is required to maintain the association's corporate status with the Illinois Secretary of State, if the association is incorporated. That said, an association should maintain the number of board members established by its governing documents. If the association has difficulty recruiting candidates for the board, or if the number of board members is high for the size of the association, the association should consider an amendment to its governing documents to reduce the size of the board. But again, that number could not be less than three board members.

Q. The board of our association collected proxies over a year ago in connection with a vote on an amendment to the declaration. A meeting was finally called to vote on the amendment, and ballots were cast using the year old proxies. Was it proper to use proxies that were this old?

A. A proxy for a condominium or a common interest community association is valid for 11 months from the date it is signed by the owner, unless the association's declaration or the written proxy itself provides otherwise. Both the association's declaration and the proxy need to be reviewed to determine if they provide that the proxy is valid for more than 11 months. If they do not include this language, the proxies would not have been valid after 11 months from the date they were signed by the owner.

• 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.