Only an owner can serve on a condominium board

Q. The board of our condominium association was under the mistaken belief that one of the candidates for election to the board was an owner. That person was elected to the board. It now turns out that the spouse of the person elected to the board is the actual unit owner, and the person who was elected is not an owner. This person won't step down from the board, claiming he is eligible because he is the spouse of the owner. Does the board need to formally have this person removed from the board?

A. Section 18(a) (1) of the Illinois Condominium Property Act provides that a board member in a condominium association must be an owner. The spouse of the person who is the unit owner is not eligible to serve on the board, even if the association's declaration might provide otherwise. If this person will not voluntarily recognize their ineligibility, it would not be necessary to have a meeting of the owners to remove them from the board.

Rather, the board should simply meet and declare the seat vacant, due to the ineligibility of the person who was "elected." The board could then fill that vacancy on the board.

Many associations have a procedure whereby they confirm the eligibility of candidates before any notice of meeting or candidate information is distributed to owners in connection with an annual meeting. Your situation is an example of why this is a prudent step in the election procedure.

Q. Who sets the agenda for board meetings? Is it the president alone, or can other board members contribute items for the agenda?

A. While the board president does not necessarily set the agenda, typically the board president prepares the draft agenda. Technically, an agenda should be approved by the board. It would be appropriate for any board member to make a motion to amend the proposed agenda to add an issue. That said, it would not be uncommon for a board member to forward an agenda item to the president in advance of the board meeting so that it could be included in the draft agenda.

Q. Removal of a board member in our condominium requires the approval of the unit owners in our association. Can a board member work with the unit owners to gather signatures and present a petition to the board to call for a meeting of the owners to vote on removal, or must a board member remain neutral? Does the board member sought to be removed have an opportunity to address the issues with the owners?

A. Special meetings of the members can be called by the president, board of managers, or by 20 percent of unit owners, under Section 18(b) (5) of the Illinois Condominium Property Act. A board member, acting in their capacity as a unit owner, can pursue the collection of owner signatures on a petition to the board to call the owners' meeting to vote on removal of the board member.

That board member can also solicit proxies from the owners that are signing the petition (and from any other owners) in connection with the owner meeting to vote on the removal. Note, too, that the board member who is the subject to the removal can also solicit proxies from owners.

Many governing documents provide that a board member can be removed only "for cause." This would require those seeking removal of the board member to make some sort of presentation at the owner meeting, and the board member sought to be removed would have an opportunity to respond.

• 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.