Unit owner can be charged for insurance deductible

Q: I fell asleep in another room while filling the bathtub in my condominium unit. The water overflowed and damaged the drywall ceiling and walls in two units below my unit. The board is now telling me I am responsible for the association's insurance deductible portion of the damage. If the association purchased insurance with a deductible, shouldn't the association pay the deductible?

A: Section 12(c) of the Illinois Condominium Property Act is clear on this issue. The board of directors of the association, in the case of a claim for damage to a unit or the common elements, has three options regarding the deductible portion of the association's property insurance.

First, the board can pay the deductible amount as a common expense. Second, after notice and an opportunity for a hearing, the board can assess the deductible amount against the owners who caused the damage or from whose units the damage or cause of loss originated. Third, the board can require the unit owners of the units affected to pay the deductible amount.

The second option is the one typically selected by a board under circumstances like yours. Deductibles can be many thousands of dollars. Unit owners such as yourself should investigate whether their own insurance covers, or if they can get insurance that covers, their responsibility for this deductible.

Q: The declaration for our condominium provides that the balconies, patios and terraces are limited common elements. It goes on to state that owners, not the association, are responsible for maintenance, repair and replacement of the limited common elements. Is that permitted?

A: Section 18.4(a) of the Illinois Condominium Property Act provides that "the powers and duties of the board of managers shall include, but shall not be limited to, the following: To provide for the operation, care, upkeep, maintenance, replacement and improvement of the common elements." Limited common elements are a portion of the common elements, per Section 2(s) of the Act.

Section 9(e) of the Act states that the "condominium instruments may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned."

There may be an issue with governing documents like yours that provide that unit owners are responsible for actually performing maintenance, repair and replacement of the limited common elements (as opposed to permitting the board to charge owners for the cost of such work performed by the association), given the above language in the Condominium Property Act. However, this issue has not been addressed in the appellate court.

Q: Our association is considering amending our declaration to address certain issues. The declaration requires amendments to be approved by a certain percentage of the owners. An issue has come up as to what the board can rely on to identify owners. Can the board rely on a certification signed by each owner?

A: Ownership of units should be confirmed by documents in the public record, meaning a deed. Owners can be required to supply such evidence of ownership. The identity of the owner of record of each unit can also be confirmed by the association by obtaining a tract book search for the units from a title company.

Some associations do their own search, and incorrectly rely on information from a county assessor's website. The assessor's records identify the name of the "taxpayer." The taxpayer may or may not be the actual owner of record. Further, information might not have been updated on such a website.

Similarly, relying on a statement from a purported owner may not necessarily be reliable.

• 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.