Executive session updates will soon go into effect

Q. The board of our association would like to meet only to discuss items that can be discussed in executive session, without owners present. We would not be voting on anything. Do we have to give notice of this gathering?

A. Starting Jan. 1 next year when an amendment to the Condominium Property Act and to the Common Interest Community Association Act is effective, the board of a condominium or of a common interest community association has two options regarding "executive sessions." The board can either make the executive session part of a properly noticed board meeting or, as will be permitted by the changes in the laws, the board can meet separately from a board meeting without giving any public notice to discuss only matters that are permitted to be discussed in executive session.

The former would typically be used if the board already has a board meeting scheduled and/or if the board will be voting on a matter discussed in the executive session at the conclusion of the discussion. The latter could be used anytime the board wants to discuss a matter that can be discussed in executive session, if the board won't then be voting on a matter at the conclusion of the discussion.

This revision to the laws governing condominiums and common interest community associations is a limited legislative response to the Palm appellate court decision.

Q. The board of our condominium has been discussing an amendment to bring the declaration into conformity with the Condominium Property Act. The board says this can be adopted by board members without owner approval. Is that correct?

A. Yes, this is permitted by the Condominium Property Act. Section 27(b) of the act expressly permits the board to amend the declaration, without owner approval, to conform to the act. The amendment will reflect what the association is already obligated to follow under this law, whether or not the applicable language of the act is currently included in the declaration.

The amendment will not make any changes of the type that would require owner approval. A similar procedure is available to the board of a common interest community association under the Common Interest Community Association Act.

It is a good idea for the board of an association to have the declaration updated, to conform to current law, from time to time. Such an amendment will reduce the likelihood of confusion between what is, or isn't, in the declaration and what is required by the applicable statute governing the association.

Q. The owner of a unit in our condominium association leases the unit to a person who has over time ignored and violated the rules of the association. The board has levied fines; however, the owner pays the fines, and the problems with the tenant continue. The tenant is making life miserable for other residents. What else can the board do to deal with this problem tenant, since the owner doesn't?

A. The board of an Illinois condominium has a very effective arrow in its quiver. The board can terminate the lease between the owner and the tenant for violations by the tenant of the association's declaration, bylaws, or rules.

The association would have to issue a 10-day notice terminating the lease. The notice must meet very specific requirements, so it's prudent to consult an attorney. If the tenant fails or refuses to vacate the unit within 10 days, the board can file a forcible entry and detainer (eviction) lawsuit against the tenant. The board can also request the court to require the owner to reimburse the association for the attorney's fees it incurs. This remedy should be reserved for serious or repeated violations, as a court might not be inclined to order the eviction of a tenant for what the court perceives as a relatively minor infraction. That is, remedies should be in proportion to the violation.

• 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.