Tenant should be able to answer complaint

Q. Our condominium association issued a notice of violation to an owner regarding conduct of the owner's tenant. The notice provided the owner with the opportunity for a hearing and described when and where the hearing with the board would take place. The owner thinks the tenant should be allowed to attend. Are tenants allowed to attend the hearing with the board to defend themselves on a rule violation?

A. The recent Boucher appellate court decision underscores the need for associations to provide due process in connection with violation hearings. If conduct claimed to be in violation of the rules concerns action of the tenant of an owner, the notice of violation should be issued to both the owner and tenant.

Some associations don't permit the accused tenant to attend the hearings, only the owner. While the owner may be responsible for the conduct of their tenant, the owner can't competently "testify" with respect to the claimed conduct of the tenant. The tenant needs to do that, and the tenant must be permitted to attend the hearing to do so.

Q. A recent column of yours suggested that an association can use an electronic means (like email) to conduct a poll of owners on an issue. I thought a condominium association had to adopt appropriate rules, and owners had to consent, before electronic communications could be used for something like this. What's the law?

A. Section 18.4(s) of the Illinois Condominium Property Act authorizes the board to adopt and amend rules and regulations authorizing electronic delivery of notices and other communications required or contemplated by the Act to each unit owner who provides the association with written authorization for electronic delivery and an electronic address to which such communications are to be delivered.

An advisory poll issued by an association is neither a notice nor communication required or contemplated by the Condominium Property Act. Therefore, a condominium may conduct such an informal and advisory poll by electronic means, without having adopted a rule or receiving owner consent. Of course, to be effective, the association will need to have owner email addresses. Any owners for whom the association does not have email addresses would receive the poll via regular mail.

Q. What can the board of a condominium association discuss by email, with respect to the association?

A. The board of a condominium can discuss, by email, any issue for which it can meet in a closed session of the board (under Section 18(a)(9) of the Condominium Property Act.)

So, a board can email to discuss litigation when an action against or on behalf of the particular association has been filed and is pending in a court or administrative tribunal; or when the board of managers finds that such an action is probable or imminent; discuss the appointment, employment, engagement or dismissal of an employee, independent contractor, agent or other provider of goods and services; interview a potential employee, independent contractor, agent or other provider of goods and services; discuss violations of rules and regulations of the association; discuss a unit owner's unpaid share of common expenses, or consult with the association's legal counsel.

Note that, except for privileged emails with counsel, these emails may be discoverable in litigation. Therefore, caution is advised in terms of what is included in these email discussions between and among board members. The board would be wise to consult with its counsel before engaging in any substantive conversation by email.

• 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.