Rule requires shoveling of snow from balconies
Q. The board of our condominium association is dealing with problems associated with snow on the limited common element balconies that serve the individual condominium units. The snow causes the drains on the balconies to become clogged with snow and ice. As a result, the melting snow on the balconies has leaked into the building and has caused serious damage to the units. Can the board adopt a rule requiring owners to remove snow from their balconies?
A. The declaration for many condominiums includes language that permits the board to require owners to maintain the limited common elements serving their units. As such, if the declaration for your association includes such language, the board can require owners to take action to remove snow from building up on the balconies, and to keep balcony drains clear of snow. A rule could be drafted and adopted by the board to address this.
This assumes that shoveling snow from the balconies is practical. For example, the board needs to be careful to avoid creating a situation where snow shoveled from one balcony simply lands on another balcony below.
Q. Our association adopted an amendment to the declaration to limit the number of units that can be leased at one time. The maximum number of units that can be leased at one time has been reached. However, we have other owners who want to lease their units. How does the board address who can lease their unit now that the maximum number of units is being leased?
A. If the issue is not addressed in the amendment, rules should be adopted by the board that provide for the creation of a "waitlist." Unit owners are generally placed on a waitlist in the order in which a notice of intention to lease is received by the board from the owner. Sometimes length of ownership is taken into account, as well.
When the total number of units being leased falls below the maximum number of units that can be leased, the person at the top of the list would be given an opportunity to lease their unit. The rules should also provide a time limit for the person at the top of the list to find a tenant and sign a lease. If the owner fails to find a tenant and present a signed lease by that time, the next person on the waitlist would be given the same opportunity. The rules would have to contain more detail than this, but this should give you a sense of what is involved.
Q. The bylaws of our association require that every contractor performing work for the association provide a certificate of insurance. If a certificate of insurance is not provided, is the contract void?
A. The contract is not void. However, a contract can typically be terminated if a contractor is in material breach of a term or terms of the contract, after providing written notice of the breach to the contractor and a reasonable period of time for the contractor to remedy the breach.
Written demand should be issued to the contractor to deliver the certificate of insurance, evidencing the types and amounts of insurance required to be provided, with a stated deadline. If the contractor fails or refuses to do so by the deadline, a notice can be issued that the contract is terminated. Of course, the contractor may dispute whether or not the breach is material.
Note too that Section 12(i) of the Condominium Property Act provides that contractors and vendors (except public utilities) doing business with a condominium association under contracts exceeding $10,000 per year must provide certificates of insurance naming the association, its board of directors, and its managing agent as additional insured parties. Of course, the section does not describe the types of insurance that are to be evidenced by the certificates of insurance.
• 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.