When a board meeting must be open

Q. We are a common interest community of 60-plus townhouses and have a five-member board. I understand the law provides only limited reasons allowing a board to meet in a private, executive session, rather than an open meeting. This is problematic when the board needs to discuss matters that are not specifically permitted under the law. It doesn't appear that the open meeting rule applies to established committees of a board. Would it be permissible to establish an executive committee consisting of the board members so we could meet to discuss (but not make decisions) on matters and projects related to the association? We are not trying to circumvent the open meeting rule but are looking for ways to be more efficient as a board.

A. As the saying goes, "You can put lipstick on a pig, but it's still a pig." If a quorum of the board are members of and present at a meeting of a committee, it is still considered a board meeting. In such an instance, a meeting of a committee would have to be open to the owners, with proper notice given them, unless one of the exceptions to the open board meeting requirement is applicable.

In general, if the board wants to gather to discuss matters that are not included in the topics that can be discussed in a closed portion of a board meeting, less than a quorum of the board must be assembled at such a gathering. That isn't necessarily efficient or practical.

Q. We have several units in our building that have incurred damage to their window casings and interior walls when water penetrated from the outside. The association has had the leaks repaired with tuckpointing of the common element exterior wall and common element lintels have been replaced over the windows. Now the question is who is responsible for the interior repairs to the units - the unit owners or the association? Verbiage in the declaration says unit owners are responsible for everything from the walls inward, but because the damage was caused by failure of the common element exterior wall, we are wondering if that would make the association responsible for the cost of these repairs.

A. Let me speak to the association's liability for damage to the portions of a unit not covered by the association's property insurance and/or damage to an owner's personal property, resulting from water infiltration through the common elements.

The association is not "strictly liable" (automatically) for such damage. However, the association would only have exposure to liability if that damage results from the association's negligence, and the association's general liability insurance could be triggered - that is different from the association's master property insurance. The burden is on the owner to prove negligence. To demonstrate negligence (breach of the board's fiduciary duty), the owner would have to prove the board knew or should have known of the common element source of the leak and that the board did not take timely and/or appropriate action to repair the source of the water infiltration. This recognizes that the association can't simply wave a "magic wand" and fix an issue. Negligence is a question of fact, based on the facts and circumstances in each case, to be determined by a court.

Let me add that there is a difference between an isolated water leak and continued water leaks from the common elements. The latter can be evidence that the association is aware of a pattern of common element leaks that needs to be addressed, and not just piecemeal in reaction to an isolated report of a leak, in support of a claim of breach of duty.

More and more owners are claiming that the lack of a preventive maintenance program by an association is evidence of "negligence." But these are questions of fact, based on the facts and circumstances in each particular case. The association could consider speaking with its insurance agent or broker about whether a claim should be made.

• 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.