Board can't remove president without vote

Q. A majority of the members of the board of our condominium association met privately and have stated they removed the president, "John," from the role of president at that gathering. These board members have advised various parties of this and directed them not to deal with "John." These board members have also stated that the board will ratify this decision to remove "John" as president at the next board meeting next month. Has "John" been removed as president of the board?

A. "John" has not been removed as president. An officer can be removed by the board at an open board meeting, with proper notice of the board meeting. An officer cannot be removed outside of a board meeting, and the president who was allegedly removed by this flawed process is still the president unless and until he is properly removed. There is no mechanism to remove an officer informally and to later ratify that action at the next board meeting.

Q. I have a question about maintenance, repair and replacement of the windows serving my condominium unit. Is the association responsible for these limited common elements, or am I?

A. Limited common elements are part of the common elements, per Section 2(s) of the Illinois Condominium Property Act. Section 18.4(a) of the Act provides that the board has the duty "to provide for the operation, care, upkeep, maintenance, replacement and improvement of the common elements." That said, Section 9(e) of the Act provides that "the condominium instruments 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."

Distilling all of this, the board is responsible for maintenance, repair and replacement of the limited common element windows. However, if the association's declaration or bylaws so provide, the board can charge the cost of that maintenance work to the owner of the unit or units served by that limited common element.

I do want to note that a common provision in a condominium declaration provides that the board may direct the owner to perform, at the owner's expense, the maintenance, repair and replacement of the windows serving their unit. No Illinois appellate court decision has opined on this particular language.

Q. The declaration for our association provides that the board needs the approval of the owners to enter into a contract with a term of more than two years. The board is dealing with an "emergency" and contends it needs to enter into a contract of longer than two years to address the emergency issue. The board also believes that owner apathy would make it very difficult to obtain owner approval to enter the longer contract. Is there an "emergency" exception that would permit the board to ignore the two-year contract limit in the declaration and enter into a longer contract without owner approval?

A. The Illinois Condominium Property Act permits the board to avoid certain requirements in an "emergency," including issues that normally require owner approval. However, these don't affect the contract term restriction in the declaration. The board is going to have to obtain owner approval here, or enter into a contract of no more than two years.

Apathetic ownership or not, one would hope that if the emergency issue facing the board is appropriately explained to the owners, the owners would support the board here and approve the contract of more than two years. This would take a "marketing" effort by the board, but it can be done!

• 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.