Should an owner who has not paid assessments be elected to the board?

Q. It's time for the annual meeting for our condominium association, and a controversy has erupted over one of our rules. The association has a rule that states an owner who is delinquent in the payment of their assessments is not eligible to serve on the board. Is this a valid rule?

A. The Illinois Condominium Property Act provides that all members of the board shall be elected at large. The exception to this is that if there are multiple owners of a single unit. In that instance, only one of the multiple owners is eligible to serve as a member of the board at any one time. The Act also provides that the association shall have one class of membership.

Reading these provisions together leads to the conclusion that a rule prohibiting a delinquent owner from serving on the board is susceptible to a successful legal challenge. However, board members serve in a fiduciary capacity, and must follow the association's covenants and the Act. Therefore, a legitimate question remains whether an owner should vote for a candidate who is delinquent in payment of their assessments, even if they are "eligible" to serve on the board.

That is, if an owner can't manage their own finances, why should they be placed in a fiduciary capacity that requires them to administer the association's finances? Of course, a candidate in that position should be afforded the opportunity to explain why their personal financial situation should not be an impediment to their serving on the board.

Q. The new recording secretary for our association, who is a former court reporter, prepares minutes of our board meetings that attempt to capture every discussion and comment that takes place at the meetings. The result is very lengthy meeting minutes, and arguments over what should be reflected in the minutes. Do the minutes have to be this detailed?

A. While memorializing every word uttered in a courtroom is essential for a court reporter, it is not required of the person preparing the minutes of a board meeting. The rationale is that the minutes are a record of decisions made by the board, and not of what is merely being discussed or of every word spoken at a meeting. That is, minutes are not supposed to be a transcript of a board meeting.

Q. Prior to the adjournment of our association's annual meeting of the owners, the newly elected board members appointed board members to serve as the officers of the association. I have always understood that the election of officers had to be done at a board meeting (not the annual meeting). What's the correct forum to elect officers?

A. The officers (typically, president, secretary, treasurer) are elected by the members of the board. This election of officers is to take place at a meeting of the board. Since the annual meeting of the owners is not a board meeting, it was not appropriate for the board to elect its officers at the annual meeting.

Many associations will call and notice up a board meeting to commence immediately after the adjournment of the annual meeting of owners. One of the purposes of such a meeting is generally to elect the officers. And it is not uncommon for the declaration for an association to require a board meeting to be held at that time. Nonetheless, the board will have to call and provide notice of a board meeting to elect the officers.

• 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.