Condo's term limits for board members is not binding
BY DAVID M. BENDOFF
Q: The bylaws for our condominium provide that board members can succeed themselves on the board. Board members serve for terms of two-years. The declaration goes on to state that a board member can only serve for six consecutive years. Thereafter, the board member must take a year off the board before being eligible to serve gain. We have a couple of board members who are bumping up on that limit. This is a problem because it is difficult to find candidates for the board. Can the six-year term limit be waived?
A: Section 18(a)(11) of the Illinois Condominium Property Act states that "board members may succeed themselves." Further, the last (unnumbered) subsection of Section 18 provides that "(t)he provisions of this section are applicable to all condominium instruments recorded under this act. Any portion of a condominium instrument which contains provisions contrary to these provisions shall be void as against public policy and ineffective. Any such instrument which fails to contain the provisions required by this section shall be deemed to incorporate such provisions by operation of law."
As such, I would contend that board members may succeed themselves on the board, and that the purported six-year term limit of the association's bylaws is void. Arguably, the board could avail itself of the provisions of Section 27(b) of the act to amend the bylaws to remove the term limit. Such an amendment could be adopted by the board, and would not require unit owner approval.
Q: Can a unit owner videotape a board meeting without the permission of the board and other owners who are attending the board meeting?
A: In a condominium or master association, the answer is "yes." The Illinois Condominium Property Act provides that any unit owner (in a condominium or master association) may record the proceedings at board meetings, or portions thereof required to be open to owners, by tape, film or other means.
Importantly, the right to tape a board meeting applies only to the open portion of a board meeting, and not to any portion of a board meeting permitted to be closed to the owners.
The taping of meetings can be disruptive and can create safety issues. The law does permit the board to prescribe reasonable rules and regulations to govern the right to make such recordings. A board should address these issues by establishing rules that will ensure the least amount of disruption without impairing unit owner rights. One important rule would be to require an owner to notify the chair person of the meeting that it is being taped.
Notably, there is no similar statutory right to tape board meetings of a common interest community association.
Q: We are amending the declaration for our condominium association. The declaration requires that mortgage holders be notified of the amendment. We have requested owners to provide information as to the name of their mortgage holder. We are being ignored by many owners. Are owners obligated to provide this information to the board?
A: Yes, per Section 22.1(c) of the Illinois Condominium Property Act. That section provides that within 15 days of the recording of a mortgage or trust deed against a unit ownership given by the owner of that unit to secure a debt, the owner must inform the board of the identity of the lender together with a mailing address at which the lender can receive notices from the association. Note further that if a unit owner fails or refuses to inform the board of this information, then that unit owner is liable to the association for all costs, expenses and reasonable attorney's fees and such other damages, if any, incurred by the association as a result of such failure or refusal.
• 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.