Board members may not waive portion of their assessments

Q: We have difficulty in recruiting candidates for the board of our condominium association. To attract candidates, the board would like to either waive some portion of the assessments for board members, or pay board members. Is this permitted?

A: This raises a couple of issues. Initially, Section 18(o) of the Illinois Condominium Property Act provides that the association shall have no authority to forbear the payment of assessments by any unit owner. So, waiving assessments of board members would not be permitted

Section 18(a)(3) of the Illinois Condominium Property Act provides that the bylaws of the association shall provide for the compensation, if any, of the members of the board. Therefore, whether the board members can be paid to serve on the board depends on the specific language in the bylaws for your association.

That said, the typical declaration for associations provides that board members serve without compensation, unless compensation is approved by two-thirds of the owners in the association. If that language is in the association's bylaws, the issue of compensating a board member would have to be submitted to the ownership for approval at a meeting of the owners.

Q: I live in a common interest community association in the Northwest suburbs. The association is made up of detached single-family homes. The roadways in the association are private and, pursuant to the declaration of covenants, the roads are maintained by the homeowners association. However, I cannot locate a deed, or a permanent tax number, for the roadways. Any thoughts on this?

A: I suspect the roadways in your association are actually part of the individual lots owned by the individual lot owners in the association and are not separately owned by the association. In such a situation, the use of the roadways would be by grant of an easement over the individually owned lots described in the association's declaration of covenants and/or plat of subdivision.

Review of those documents should resolve the issue pretty quickly. Under this scenario, it is extra important that the association maintain sufficient liability insurance over the roadways for which it is responsible.

Q: Our condominium complex includes a pool. This facility has not been opened by the board during the COVID-19 pandemic. Is this reasonable? Can someone sue over this issue?

A: Swimming pools in Illinois associations may be opened under Phase 4 of Restore Illinois. However, associations would have to comply with the Illinois Swimming Facility Guidelines. Those associations that cannot meet the guidelines could be justified in keeping the pool closed, particularly if their insurance does not cover COVID-19 claims.

We will have to wait and see what litigation, if any, arises over such decisions, or over claims that a person contracted COVID-19 at an association pool (or other amenity of an association).

Q: Are renters permitted to serve as officers or as directors on a homeowners' association board of directors in Illinois? Is the law on this issue the same in all states, or do the laws applying to this situation vary from state to state?

A: In Illinois, a board member of a condominium or of a common interest community association must be an owner of a unit in the association. The officers (president, secretary, treasurer) are elected from among the members of the board. Therefore, a tenant (or any other person who is not an owner) cannot serve on the board or be an officer.

Note, too, that the bylaws for many associations permit the spouse of an owner to serve on the board, yet such a provision would not be valid.

Each state is governed by its own statute regarding associations; so, the answer to this question could vary from state to state.

• 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.