Must condo fitness center comply with vaccine requirement?
Q: Our homeowners' association is located in the Northwest suburbs of Cook County. The amenities of the association include a very nice fitness facility. Does the board need to require proof of vaccine against COVID-19 before our residents can use the facility, under the recent Cook County mandate?
A: Effective Jan. 3, the Cook County Department of Public Health adopted an order regarding COVID-19 mitigation. Among the various requirements under the order, health and fitness centers must require any individual 5 years of age and older to show proof they are fully vaccinated against COVID-19 in order to enter into the establishment.
However, the order does not apply to indoor locations in a residential building, the use of which is limited to residents, owners or tenants of the building. Therefore, if the use of the association's health and fitness facility is limited to residents, owners or tenants of the building, proof of vaccination would not be required in order for a person to use the facility.
Q: All of a sudden, our condominium association has been receiving questionnaires from lenders of prospective purchasers seeking all sorts of information. Lenders are asking about deferred maintenance, code violations, special assessments, and seeking all sorts of documents never requested before. Is the association required to respond to these questionnaires?
A: In what may be considered an overreaction by Fannie Mae to the tragic Surfside, Florida, condominium building collapse, Fannie Mae has revised its requirements for lenders and appraisers for condominium projects, effective Jan. 1. These are intended to permit lenders to assess the safety of the building in which the unit in question is located, in making a lending decision.
If an association does not respond, owners and prospective purchasers of units won't be able to finance units through traditional sources that bundle/sell their mortgages to the secondary mortgage market. This probably accounts for most mortgage loans. That may have a chilling impact on the sale and refinance of units, and open the board up to claims of breach of fiduciary duty.
Importantly, and I appreciate the expense, consideration should be given by condominium associations to obtaining a current inspection report dealing with the Fannie Mae requirements, so that complete and accurate responses can be given in response to these lender questionnaires.
Q: The declaration for our condominium provides that the board prepares the annual budget, and that the annual budget is to be approved by unit owners at the annual meeting. It has been my understanding that the board adopts the annual budget, not the owners. Which is correct?
A: The annual budget and assessment are not approved by the unit owners of the condominium. Per the Illinois Condominium Property Act, the annual budget and assessment are adopted by the board of directors at a board meeting. That said, there is a process whereby the owners can call a meeting to vote on the annual budget, if the amount of the annual budget adopted by the board exceeds a certain threshold.
Q: The annual meeting of our condominium will be held this spring. What are the rules about the association sending out information about candidates for the board?
A: The board of directors can disseminate, to unit owners, biographical and background information about candidates for election to the board. However, to do this, reasonable efforts must be made to identify all candidates. All such candidates must be given an opportunity to include biographical and background information to be disseminated by the board. Importantly, the board cannot express a preference in favor of any candidate or candidates. This is all set out in Section 18(a)(17) of the Illinois Condominium Property Act.
• 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.