Pandemic restrictions should be revisited by the board

Q: Our common interest community association is exempt from the Illinois Common Interest Community Association Act. The bylaws for the association provide for voting in elections for the board in one of two ways; either in person or via proxy. Nonetheless, the board conducted the annual meeting entirely via "Zoom," without any in-person component. Was this proper?

A: Initially, I am curious as to how owners were able to cast a vote in the election for your association if it was conducted entirely by video conference.

I have stated here from time to time that there is currently no express authority in the Illinois Common Interest Community Association Act to conduct annual owner meetings entirely via video conference. The use of video conference as a component of annual meetings came about during the pandemic, as a "compromise" between the letter of the law and the various government-imposed restrictions on gatherings. Those restrictions have been lifted and it's time for associations to return to a "normal" annual meeting environment.

Nonetheless, many associations continue to follow the pandemic era annual meeting procedure without express authority. Let me add that even if a condominium or common interest community association adopts rules providing for voting via electronic or acceptable technological means, owners must still be allowed to submit an association-issued ballot in person at the election meeting; meaning there needs to be a physical location for the annual meeting.

To answer your question, given the language of the bylaws, it was not appropriate for the association to conduct the annual meeting without an in-person component. An in-person component of an annual meeting is required both for owners who want to vote in person, and for the holders of proxies to cast ballots on behalf of the owners for whom they hold a proxy.

It still might be possible to have a "hybrid" meeting, with both a video and in-person component. However, it would be great if the legislature codified this approach for all of the various housing association types.

Q: According to the bylaws for our association, the annual election is supposed to take place on the last Tuesday of October. That is Halloween this year. The association's bylaws provide that if the date for the annual meeting is a legal holiday, the meeting will be held at the same hour on the next succeeding date that is not a legal holiday. Does this allow the association to change the date of the annual meeting this year, so that it does not take place on Halloween?

A: Halloween, while widely celebrated, is not a "legal holiday." Therefore, the language in your bylaws would not apply. That said, the Illinois General Not for Profit Corporation Act (Section 107.05(b)) describes what happens if the annual meeting is not held at the designated time.

If an annual meeting has not been held within the earlier of six months after the end of the corporation's fiscal year or 15 months after its last annual meeting, then any member of the association may apply to the circuit court for an order directing that the meeting be held and fixing the time and place of the meeting, provided the owner has made a request in writing directed to the president for an annual meeting and if a notice of meeting is not delivered to members entitled to vote within 60 days of such owner's request.

While there is no "hard" deadline for scheduling the annual meeting here, the above procedure from the Not for Profit Corporation Act could be invoked by owners if the annual meeting is not "timely" held.

• 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.