Stolen bike may be both a police and association matter
By David M. Bendoff
Q: Our condominium recently had a resident report their bike stolen from our bike room. We have the women who stole the bike on camera (we can't identify her yet but we are pursuing that). When we do identify her, would this be a police matter or an association matter? In our rules and regulations, the association is not liable for stolen bikes. Can the association fine the resident who is in involved in theft?
A: Yes, this is a police matter, and the victim should contact the police, and their insurance agent.
However, if this theft was done by a resident of the association, the association can take action (fines against an owner if it violates the declaration or rules, or eviction if it is a tenant).
As an aside, these unilateral disclaimers of liability in rules are probably not enforceable, and the association can have exposure to liability if the theft was due to negligence of the association. Once the association is on notice of such criminal activity, it may have a duty to take action to try and prevent it in the future. That action depends on how the perpetrator gained access to the bike room.
Q: What happens once a motion is made at a board meeting?
A: If a motion is made, without being seconded, the motion "dies" for lack of a second. If a motion is made and seconded, there is generally then a discussion among the board members on the motion, followed by a vote on the motion. Typically, to pass, a motion must be approved by a majority of the board members present when a quorum is present.
There are some issues that require approval of a "supermajority" of the board. For example, the filling of a vacancy on the board requires approval of two-thirds of the remaining members of the board, under the Illinois governing statutes for condominiums and common interest community associations. The assignment of the right of the association to future income from common expenses or other sources, and to mortgage or pledge substantially all of the remaining assets of the association, requires approval of a majority vote of the entire board of a condominium.
Q: We are a self-managed association. New board members were voted in at the recent annual meeting. A former board member will not deliver the on-site office keys, and she removed association files and computers before the election. How can the new board function?
A: This would be a breach of the former board member's fiduciary duty. The board, probably via counsel, needs to issue a very strongly worded demand letter to this former board member to immediately deliver the keys, files, computers and any other association property in this person's custody or control to the association. If that is not productive, a lawsuit can be filed to require the return of this association property. The lock to the office door should be changed as well.
Q: The board of our condominium association does not have an issue with the lawful smoking of marijuana in units. However, we are getting complaints from owners about marijuana odor in their units that originates from another unit. Is there any action the board can take here?
A: Short of prohibiting the smoking of cannabis in units, which would take an amendment to the association's declaration and/or bylaws, the board may be able to address this issue in its rules. For example, the rules could provide that residents may not allow cannabis smoke and odor originating in their unit from migrating into other units or the common elements. This can possibly be accomplished by sealing gaps in the smoker's unit, or with appropriate filters in the smoker's 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.