Process server should be allowed on condo property

Q. Our association has a staffed gatehouse. The procedure in our association requires the gatehouse staff to phone a resident before permitting any guest or other person to go to the resident's home. A process server wanted to enter the property to serve a resident, and strongly objected when the gate staff advised him of this practice. The process server threatened to have the gatehouse staff person arrested if he called the resident. Is our gatehouse staff required to let the process server into the property without first calling the resident that is going to be served?

A. A process server must be allowed onto association property. In Illinois, it is a Class B misdemeanor to knowingly interfere with service of process by an authorized process server. The law is not as clear as it could be, though.

However, the gatehouse staff member who phones a resident to advise that a process server is there could be deemed to be obstructing the authorized service or execution of any civil or criminal process (again, a Class B misdemeanor) if the call permits the resident to avoid service. For example, based on the call, the resident might refuse to answer the door to the process server or may leave their home. Do note that the security person does have the right to inquire and to review the credentials of the person attempting to serve process.

Q. I live in a subdivision of single-family homes, developed in the early 1960s. An association for our subdivision was incorporated with the state, and bylaws were also created, at about that time. However, there is no declaration of covenants recorded against the individual homes, and membership in the association is voluntary. The association's annual dues are fairly inexpensive, and are typically about $200. Historically, owners paid these dues without question. However, the newer owners have refused to make the payments to the association citing a lack of recorded covenants or legal obligation. How can we make the payment of dues mandatory?

A. I hear stories like this from time to time. In order to make dues mandatory, each and every current owner is going to have to agree. This is typically accomplished by having covenants recorded against their property. The covenants would also have to include appropriate language to bind future owners.

This can be accomplished through hard work. In the absence of such a successful effort, and depending on the services provided by the association, the association might be able to claim that owners who do not contribute to the expenses are being unjustly enriched. This would require potentially expensive litigation to resolve.

Q. I live in an Illinois condominium association. Each unit has either a limited common element wooden deck or a limited common element concrete patio. The association has been paying the cost to stain and seal the wood decks with association funds. Since decks are a limited common element, would it be proper to charge the cost of staining and sealing decks only to unit owners with decks?

A. Section 9(e) of the Illinois Condominium Property Act provides that the declaration or bylaws of the association may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned. The answer to your question depends on the specific language of your association's governing documents. If your condominium instruments include the "chargeback" language, the association could perform the limited common element work and charge the cost of staining and sealing the decks to the owners of units served by a deck. If the language is not present in the governing documents, the association could consider an amendment to include this language.

• 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.