Unit owner can be charged for damage to common element

Q. I live in a condominium. I received a letter from the property manager saying I must pay the association for the repair of a wood fence located between my unit and the unit that is adjacent to mine. The fence separates patio areas. The manager said I would have to pay for this repair because my plants caused the wood fence to rot. The property manager had this fence repaired, and I had no input as to the contractor or the repair. Because the fence is a common element maintained by the association, why am I paying for the repair?

A. The typical condominium declaration includes a provision that says maintenance, repair or replacement of common elements needed because of the action or neglect of an owner is an expense that can be charged to the owner. That may be the basis for the association's position in your case. The work, in such an instance, would be performed by the association with a contractor selected by the board.

Q. I'm still confused about what board members of a condominium can and cannot discuss by email. Please clarify.

A. In general, board members cannot communicate (and have a conversation) with all other board members (or a quorum of the board members) via email about association matters. In general, discussions by the board about association matters need to take place in meetings of the board that are open to owners.

There are a couple of exceptions.

Under Section 18(a)(21) of the Condominium Property Act, there is an exception for emergencies when a decision needs to be made outside of a board meeting. "Emergency" means an immediate danger to the structural integrity of the common elements or to the life, health, safety or property of the unit owners.

The Condominium Property Act permits the board to ratify and confirm actions of the members of the board taken in response to an emergency. Thereafter, the board must give notice to the unit owners of:

• The occurrence of the emergency within seven business days after the event.

• The general description of the actions taken to address the emergency within seven business days after the event.

While this section does not describe the manner in which emergency decisions are to be made, it can presumably be made via email.

Further, the board can communicate by email regarding any matter that it can discuss outside of the open portion of a formal meeting under the Illinois Condominium Property Act, Section 18(a)(9)(A). So, the board can discuss, by email:

• Litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal, or when the board of managers finds that such an action is probable or imminent.

• The appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services.

• Interview a potential employee, independent contractor, agent or other provider of goods and services.

• Violations of rules and regulations of the association.

• A unit owner's unpaid share of common expenses.

However, any vote required on these matters must take place at a meeting of the board of managers or portion thereof open to any unit owner.

Note that board members need to be careful about what they do discuss and say in emails among the board members, particularly as to discussions about items recited in Section 18(a)(9)(A) of the act, because the emails would likely be discoverable in litigation.

• 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.