Who can be a board member
Q. I have read your articles on holding a position on an association's board, and the requirement that a board member be an owner. My question is can a spouse hold office if the other spouse has title to the condominium in his or her trust, but the other spouse is a beneficiary of the trust? That is, can the beneficiary of a trust hold office legally while the spouse, in whose trust title to the unit is held, is alive? Our management company confirms that I can, but your article seems to say no.
A. My Jan. 27 column noted that a nontitle-holding spouse of the owner of a condominium unit cannot serve on an Illinois condominium board, even if the declaration permits it. Note that the current beneficiary of a trust that holds legal title to a unit is considered an owner.
As such, a current beneficiary of the trust that holds title to a unit is eligible to serve on a condominium board. Let's give some examples as to how this plays out.
If one spouse is the trustee of a land trust, and both spouses are current beneficiaries of the trust, either spouse could run for the board. As an aside, both current beneficiaries could not run for and serve on the board at the same time, because only one of the multiple owners of a unit can serve on the board at one time.
In a second example, one spouse is the trustee of a land trust that owns the unit, and is also the current beneficiary of the trust. The other spouse is not a current beneficiary, but is a "contingent" beneficiary. A contingent beneficiary would only become a current beneficiary if the current beneficiary dies; hence the term "contingent" beneficiary. A contingent beneficiary is not eligible to serve on the board.
The contingent beneficiary would be eligible to serve on the board if they become a current beneficiary, after the death of the spouse who previously was the sole current beneficiary of the trust.
Q. Our association has a new board, and its views are slanted toward absentee investor owners. The new board wants to eliminate our swimming pool. Their concern is the maintenance expense of the pool. My question is how will the elimination of the pool affect the value of my condominium?
A. Hopefully, the pool doesn't look like Norma Desmond's pool in "Sunset Boulevard." I have written in the past regarding what is required to eliminate an amenity like a swimming pool. It is not a decision the board can make unilaterally; it requires owner approval.
My assumption is that the elimination of such a significant amenity would have an adverse impact on unit market value. However, there may be circumstances where the financial drain of such an amenity is more off-putting than the lack of such an amenity, such that its elimination would be value neutral or have a positive impact on unit value.
I would suggest speaking with a real estate agent for guidance as to the impact on market value of units associated with elimination of the swimming pool in your association.
Q. I live in a common interest community association. We are fee simple ownership. Our declaration and bylaws have never been amended or updated since originally recorded back in 1978. Our association president claims that because of the recent changes made to the Illinois Condominium Property Act, we are mandated to amend/update our declarations and bylaws to include the new changes made to the Illinois Condominium Property Act. Is that correct?
A. Initially, by definition, a common interest community association is subject to the Common Interest Community Association Act, and not to the Illinois Condominium Property Act.
That said, both statutes provide a procedure that permits the board to approve an amendment to the declaration and bylaws, without owner approval, to bring those documents into conformity with the applicable statute. The law does not require the board to do this. However, many common interest associations were created before there was a Common Interest Community Association Act, so the governing documents are likely woefully out of sync with applicable laws. And there have been many changes to the Condominium Property Act over the years.
For that reason, it would be prudent for the board of the respective types of associations to consider periodic updates to their declaration and bylaws to conform to the applicable statute.
• 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.