Monthly assessments still needed despite pandemic closures
Q: I live in a condominium. The board of directors has closed facilities like the fitness center because of the COVID-19 pandemic and in response to the state's stay-at-home executive order. Shouldn't the owners get a reduction in our monthly assessments because we haven't been able to use this amenity?
A: No, the owners are not entitled to a reduction in assessments as the result of an amenity, such as the fitness center, being closed during the pandemic.
Owners don't pay assessments to use common element amenities, including your fitness center. Rather, owners pay assessments so the association (on behalf of owners such as yourself) can pay for maintenance, repair and replacement of, and utilities and insurance for, the common elements. This would include equipment in a fitness center. Those expenses are not necessarily being reduced during the pandemic. In many instances, associations are actually exceeding line items in budgets for cleaning of the common elements and related expenses being incurred to deal with pandemic-created issues.
However, if for whatever reason the association does have a surplus in its operating account at the end of the year, the surplus would be addressed in the manner set forth in the association's declaration, or the Condominium Property Act, as applicable.
Q: The declaration of covenants for our common interest community association provides that the annual meeting is to be held in April. This year's annual meeting was expected, for the first time in many years, to be contested in that there were six candidates for three positions. It was likely that three current board members would be replaced at the annual meeting.
Due to the governor's COVID-19 stay-at-home order, the board postponed the annual meeting "indefinitely." The assumption of owners was that the annual meeting would be rescheduled as soon as the law permits. Now there are rumblings that the board is using the pandemic as an excuse to not hold the annual meeting at all. The owners think this is just a pretext to avoid the inevitable replacement of board members. Is there anything the owners can do to force the election?
A: This issue is governed by Section 1-25(g) of the Illinois Common Interest Community Association Act. That section provides that if no election is held to elect board members within the time period specified in the bylaws, or within a reasonable amount of time thereafter not to exceed 90 days, then 20% of the members may bring a lawsuit to compel compliance with the election requirements.
Note too that if the court finds an election was not held within the required period due to bad faith acts or omissions of the board, the members who brought the suit are entitled to recover their reasonable attorney's fees and costs from the association.
Of course, the board would be acting prudently to postpone the annual meeting until such time as the stay-at-home orders are lifted or modified to permit these gatherings to proceed.
Q: The board of our association wants to implement a rule that would prohibit owners from installing battery-operated, motion-activated surveillance cameras; whereas, hard-wired surveillance cameras would be permitted. Is this rule allowed?
A: I don't understand the rationale for the distinction between hard-wired and battery-operated surveillance cameras. In general, a rule must be reasonable and, without knowing more, the distinction does not appear reasonable.
Keep in mind that a surveillance camera is permitted in areas where a person does not have a reasonable expectation of privacy. Moreover, the surveillance cameras should not capture activity in another person's individual unit.
• 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.