Condo board asked to deal with secondhand smoke

Q. I recall that you have addressed second hand tobacco smoke, but I can't recall your guidance. One of our residents works from his unit and chain smokes all day. His neighbors have bombarded the association with complaints that they smell cigarette smoke in the hallway next to his unit and in their adjacent units. Does the association have any remedies here?

A. This is an increasingly more common complaint. The association's governing documents can offer relief if they include the typical language that prohibits residents from engaging in noxious or offensive conduct or conduct that may be an annoyance to other residents. Tobacco smoke that migrates from one unit to the common elements or to other units can rise to the level of being a violation of this type of a restriction.

I would suggest starting with an informal means of addressing the issue with the offending owner. There might be measures the smoker can take to keep the smoke from entering other units or the common elements, or the smoker may agree to smoke outside the building.

However, if informal attempts to resolve this problem are not fruitful, a violation would permit the board to take enforcement action against the offending resident. For example, the board could levy a fine after providing notice of the violation and an opportunity for a hearing. If that does not curb the conduct, the board can consider filing suit to prohibit the owner from smoking in the unit, or require the owner to implement measures to keep the smoke from migrating from the unit.

Q. The board of our condominium never posts the notice of its board meetings at the property. As a result, owners never know when the meetings are held. As a result, owners are seldom in attendance at the board meetings. Are these meetings valid?

A. Section 18(a)(9)(E) of the Illinois Condominium Property Act requires that notice of every meeting of the board be posted in entranceways, elevators or other conspicuous places in the condominium at least 48 hours prior to the board meeting. Failure to give proper notice of a meeting can invalidate the meeting and the actions taken at the meeting.

Hopefully, the failure to post the meeting notice here is inadvertent, and not an attempt to interfere with owner's rights to attend the open portion of board meetings. I would suggest that the board here be reminded of its obligation to post notices of its meetings. Further, the declaration should be reviewed to determine if notice of board meetings needs to be mailed or delivered to owners, as well.

Moreover, the board must also email notice of board meetings, at least 48 hours prior to the board meeting, to each unit owner who has provided the association with written authorization to conduct business by acceptable technological means.

Q. A unit in our association has been occupied by the same individual for many years. The board thought this person was the owner. Recently, that person moved out of the unit and another person moved in. The board was never advised of a sale of the unit, as our governing documents require. The new resident claims he and a relative, who had occupied the unit, have been owners of the unit for many years, and that he is now living in the unit. How can the board confirm the resident's representation that he is, and has been, an owner?

A. The board should request this person to provide a copy of the recorded deed to the unit. On its own, the association can obtain an ownership search through a title company who can also provide a copy of the last recorded deed to the unit. The deed should resolve the issue as to ownership.

However, if the unit is owned by a trust, documents would have to be provided by the trust to identify the beneficiaries, as the beneficiaries would be considered owners.

• 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.