Board isn't allowed to restrict free speech of unit owners

Q. Our condominium association has a rule in place concerning distribution of written materials by owners to other owners. The rule prohibits the distribution of any materials, unless first submitted to the board for approval. Is this permitted?

A. "No," this rule would not be permitted. The board has the power to adopt and amend rules involving the operation and use of the property. However, no rule or regulation may impair any rights guaranteed by the First Amendment to the Constitution of the United States, or Section 4 of Article I of the Illinois Constitution, including the free exercise of religion and other free speech rights. Nor may any rules or regulations conflict with the provisions of this Condominium Property Act or the condominium instruments, as described in section 18.4(h) of the Illinois Condominium Property Act.

A board may impose reasonable time, place and manner restrictions in terms of owner-to-owner distributions. For example, a board may be able to prohibit an owner from slipping fliers under unit doors. However, the rule here, that requires board approval of content before an owner can distribute materials to other owners, is absolutely unenforceable.

Q. The board of our association posts meeting minutes in a difficult to find, hidden place on our association website. The website is only accessible by unit owners. I have a group email of residents in the building but some of those residents have moved out and may no longer be owners. As an owner in the association, would I be permitted to send those minutes to all the people on my group email, even if I cannot be absolutely be sure the people who receive those minutes are currently owners in the association?

I know that when people are interested in buying a condominium unit, prospective purchasers can see the minutes. So the question is how public are our minutes?

A. Condominium and common interest community association are not public entities, and the association's books and records are generally not available to the public at large. Minutes of all meetings of the association and its board of managers for the immediately preceding seven years must be maintained by the board for examination and copying by owners.

Section 22.1 of the Illinois Condominium Property Act and Section 1-35 of the Common Interest Community Association Act describes the books and records that must be made available, on request, to a prospective purchaser. However, contrary to your understanding, this does not include meeting minutes.

To answer your question, meeting minutes of the association are not "public" documents. Therefore, it would not necessarily be appropriate for you to distribute minutes to people who might not be owners. Notably, other owners who want to review the meeting minutes can make a request to do so to the board.

Further, if this is a significant enough issue, I suggest that the owners ask the board to post the meeting minutes in a more prominent location on the website.

Q. The board of our condominium association is supposed to have three board members. Board members are elected for two year terms on a staggered basis; that is either one or two board members are elected in alternating years. In 2017, two seats on the board would have expired. However, the annual meeting involved the election of three owners to the board because a board member resigned in 2017 in the first year of his term.

A board member is claiming we don't need an annual election in 2018 because three board members were elected in 2017. Is that correct?

A. While three board members may have been elected in 2017, there does need to be an election in 2018. That is, there needs to be an election for one board position, for a two-year term, in 2018.

The board member elected in 2017 to fill the seat of the board member who resigned in the first year of a two-year term was elected to fill the remaining one year of that term. The person elected to fill the vacancy was not elected to a full two-year term.

• 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.