Association rules still required after law is changed
Q. Last fall, the board of our association adopted a written policy for resolving unit owner complaints pursuant to Section 35 of the Illinois Condominium and Common Interest Community Association Ombudsperson Act. At this time, the board is reviewing and revising the association's rules. The draft of the rules presented to the board has removed the rules enforcement provisions, and has inserted the owner complaint policy required under the Ombudsperson Act in their place. We have a debate among the board members as to whether this is proper.
A. The written policy for resolving unit owner complaints required and adopted under the Ombudsperson Act is not a substitute for enforcement provisions in the association's rules. Each addresses different issues.
The association's rules enforcement provisions address violations of the association's declaration and rules by owners, tenants and guests. The rules enforcement provisions address matters like the issuance of a notice of violation, and the hearing with the board, and fines that can be levied by the board.
The written policy for resolving unit owner complaints required and adopted under the Ombudsperson Act addresses complaints by owners against the board when an owner claims the board is in violation of the Illinois Condominium Property Act or Illinois Common Interest Community Association Act, as applicable.
The bottom line is that the written policy for resolving unit owner complaints required and adopted under the Ombudsperson Act is not a substitute for enforcement provisions regarding violations of the association's governing documents. The rules enforcement provisions should continue to be part of the rules.
Q. Garbage is picked up in our single-family homeowners association on Friday. Every week, the same few homeowners leave their empty garbage cans at the curb all weekend after the Friday pickup, and it is pretty unsightly. These owners are typically simply lazy or arrogant.
Our village does have an ordinance requiring garbage cans to be removed the evening of the garbage pickup. The association's declaration of covenants prohibits an owner from doing anything that is in violation of law or ordinance. Does the association have any remedies?
A. The violation of the village ordinance would constitute a violation of the association's covenants, based on the language you have described. The board of directors of the association should issue a friendly reminder to these owners about the ordinance and the requirement to remove the garbage cans by Friday evening.
If that does not work, the board should levy a hefty fine for this violation; however, the board must first issue a written notice of violation to the offending owners and provide them with an opportunity for a hearing. It may also be worthwhile to contact the municipality to inquire if it will issue an ordinance violation citation.
Q. The board of our association recently relied on an opinion of its counsel in making a very controversial decision. Owners claim the board acted improperly in making the decision and are threatening to file suit against the board for breach of fiduciary duty. What happens if an association relies on legal advice that turns out to be wrong?
A. The law is often not black and white, and attorneys are frequently called upon to interpret the gray areas of the law. Despite a board's reliance on advice of counsel, a court may rule that a decision made by the board was improper and set aside the action taken by the board. However, in general, reliance on advice of counsel is going to be a defense by the board to a breach of fiduciary duty claim against it, insulating board members from monetary damages.
• 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.