Board meetings shouldn't be recorded in secret

Q. An owner in our condominium association secretly records meetings of the board of directors of the association. Is that permitted?

A. Any unit owner may record the proceedings at meetings of the board of managers or portions thereof required to be open by the Illinois Condominium Property Act by tape, film or other means. However, the board may prescribe reasonable rules and regulations to govern the right to make such recordings. This is set forth in Section 18(a)(9)(C) of the Condominium Property Act.

The board should consider adopting rules that, among other issues, require any unit owner who intends to record a board meeting to advise the president prior to the commencement of the meeting. This will permit the president to make an announcement to those in attendance at the meeting that the meeting is being taped. The rule should further provide that no board meeting may be taped in a "surreptitious manner," and the rule should define what that means. An owner who does audio record a board meeting in a "surreptitious manner" could arguably run afoul of eavesdropping laws.

Q. I live in a condominium association. I am considering filing a suit against the board for failing to maintain the common element roof because the repeated roof leaks have damaged my unit. The attorney I have spoken with advises me I have a good case, but that I would not be able to recover my attorney's fees from the association. When the association files suit against an owner, it recovers its attorney's fees from the owner. Why is this?

A. In general, a person can only recover their attorney's fees from the other party in a successful lawsuit if the recovery of attorney's fees is provided for by contract or by statute. The typical declaration (a contract) in an association permits the association to recover its attorney's fees from an owner in legal proceedings. However, there is typically no such language in a declaration that would permit an owner to recover their attorney's fees from the association. Similarly, there are statutes that permit an association to recover their attorney's fees from an owner, for example, in actions to collect unpaid assessments.

Q. What is the difference between a board of managers and a board of directors in a condominium?

A. The board of managers is the group elected to administer and operate the association. If a condominium association is incorporated, the board of such a corporation is generally referred to as a board of directors. The board of directors of such corporation constitutes the board of managers provided for in the Illinois Condominium Property Act. Essentially, "board of managers" and "board of directors" can be used interchangeably.

Q. I recently attended an annual meeting of my association, and I had proxies from 35 owners. Each proxy described for whom each owner wanted to vote for in the election for the board. When I arrived at the meeting, I was advised that I had to complete a ballot for each of the 35 units of the owners who gave me their proxy. I think the board was hassling me, and that the proxies should have been used for the vote. What's correct?

A. The board was correct. There is a common misconception as to the role of a proxy.

A proxy is a document from an owner to the proxy holder that authorizes the proxy holder to vote on behalf of the owner. Importantly, a proxy is not a ballot, and a proxy is not an absentee or mail-in ballot. Consequently, the proxy holder needs to complete a ballot in order to implement the directions of the owner set forth in each proxy. The proxy may indicate specifically how the proxy holder is to vote, or the proxy may give the proxy holder discretion to vote in the manner the proxy holder chooses.

• 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.