Association can file a joint appeal of assessments

Q: The owners in our association are complaining loudly about the substantial increase in the real estate taxes for their units. I understand the board of directors can file a group tax appeal for all of the units. What vote is required to allow the board of our condominium to protest the real estate taxes levied against the individual units in the association?

A: This is governed by Section 10(c) of the Illinois Condominium Property Act. The board of directors, acting on behalf of all unit owners in the condominium, has the power to seek relief from or in connection with the assessment or levy of any property taxes.

However, in order for the board to exercise this power, this must be authorized by a two-thirds vote of the members of the board at a board meeting. Alternatively, this can be authorized by the affirmative vote of not less than a majority of the unit owners at a meeting duly called for such purpose.

Note too that the board can charge and collect all expenses incurred in connection with this process as common expenses. Most law firms that do this type of work typically do so on a contingent fee basis. Therefore, there would be no legal fees unless a reduction in assessed valuation is obtained.

Q: We are a smaller condominium association. We have a very difficult time attracting candidates for the board, particularly since most of the unit owners have served on the board at one time or another. Can we amend our declaration or bylaws to allow the spouse of a unit owner to serve on the board?

A: In Illinois, a board member must be a unit owner. Section 18(a)(1) of the Condominium Property Act states that the bylaws shall provide for the "election from among the unit owners of a board of managers." Therefore, the spouse of the owner of record of a unit would not be eligible to serve on the board

Q: As the result of a dispute with a roofing contractor, the association has withheld payment. The board of our condominium was served with a notice of mechanic lien from the contractor. Does the board need to advise the owners?

A: The board of directors of the association has the duty to accept service of a notice of claim for purposes of the Mechanics Lien Act on behalf of each respective member of the association, with respect to improvements performed pursuant to any contract entered into by the board for a condominium property containing more than eight units. The board is required to distribute the notice to the unit owners within seven days of the acceptance of the service by the board. The service is deemed effective as if each individual unit owner had been served individually with notice. This is set out in Section 18.4(r) of the Illinois Condominium Property Act.

Q: A unit owner in our association continues to violate rules related to noise, even after the board has levied numerous fines for violations. What can the board do to escalate this?

A: If fines have not persuaded the owner to comply with the association's governing documents, the board needs to consider filing a suit against this owner. The suit would seek a court order compelling the owner to comply with the governing documents, and to stop engaging in the conduct that violates the governing documents. The association could seek the imposition of penalties if the owner continues the violations after obtaining such a court order. Further, the association likely has a right to seek recovery of its attorney's fees from this owner.

• 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.