Nine-member board should consider reducing its size

By David M. Bendoff

Q: The declaration for our association provides for a nine-person board. It also expressly provides for a quorum of five board members. There is an exception to the five-person quorum requirement for a meeting held solely to fill vacancies on the board. Due to resignations, board members who have sold their units, and a lack of interest among owners to serve on the board, we now have only a four-member board. There is much business that needs to be conducted by the board, yet apparently the board cannot as we do not have enough board members to establish a quorum. Is there any sort of statutory override?

A: There is no statutory override to the language in the association's declaration. The board does need to hold a meeting as soon as possible in order to fill at least one of the vacancies on the board in order to establish a quorum.

Once that occurs, there will be enough board members for a quorum, which would permit members to hold board meetings to conduct association business.

As an aside, the board should fill as many of the vacant board seats as possible, or call a special meeting of the unit owners to vote to fill the vacancies. Further, the association should consider an amendment to the declaration to reduce the number of board members and of the quorum.

Q: I reside in a common interest community association. The board of directors recently posted a new declaration to amend, restate and to replace the original declaration in its entirety. This, the board claimed, was based on the Common Interest Community Association Act's authorization for the board to amend the declaration to conform to the Act, without a membership vote.

However, the revised declaration makes changes well beyond bringing the declaration into conformity with the Act. The declaration is barely recognizable compared to the original declaration, except for the name of the association! Did the board act legitimately in replacing the original declaration in its entirety without notification to, or approval by, the association's members?

A: Section 1-60(a) of the Illinois Common Interest Community Association Act authorizes the board to bring the declaration into conformity with the Act, by vote of two-thirds of the board of directors, without a membership vote. This amendment process frequently results in an amended and restated declaration that adds/deletes provisions as mandated by the Act. However, the process does not authorize the board to replace the original declaration in its entirety.

A provision in the community instruments requiring members of record to vote to approve an amendment to the community instruments, or for the members of record to be given notice of an amendment to the community instruments, does not apply to an amendment that corrects an omission, error or inconsistency to conform the community instruments to this Act or to another applicable law. However, this would not be applicable if the scope of the amendment exceeded the board's authority under by Section 1-60(a) of the Act.

Any amendment to the declaration beyond that which is authorized to be done by the board without owner approval by Section 1-60(a) of the Act is likely not valid, and could give rise to a slander of title claims by owners. Attorney's fees may be recoverable in such a suit; which could also seek a declaratory judgment that any changes to the declaration beyond those authorized by Section 1-60(a) of the Act are invalid.

• 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.