Unit owners must keep condo association active

Q: Our (self-managed Illinois) condominium association is comprised of eight units. Our declaration requires three to be board members. What would happen if we were unable to fill one of the board positions? In the most extreme case, what would happen if none of the eight owners were willing to fill a role and we had no board members?

A: An association that is supposed to have three board members can typically operate with two. However, the association will not be able to keep its not-for-profit corporation status with only two board members when it is time to file the annual report with the Illinois Secretary of State.

The association could not function without a board. Without a board, assessments wouldn't be collected, the common elements would not be maintained, and bills would not be paid. Owners need to understand that and step us and serve on the board.

Q: One of the townhouse units in our small association tested positive for radon. The owner presented a mitigation plan to the board. The plan to mitigate the radon involves an active fan and 3-inch PVC pipe that would run up the exterior of the unit.

Can the board deny the plan because we do not want any cosmetic differences on the exterior of the units?

A: Radon is naturally occurring and may enter into a unit even in the absence of a defect or failure in the common elements. In general, the unit owner is responsible, at the owner's expense, to install and pay for a radon mitigation system to for his or her individual unit. Radon mitigation techniques often involve the installation of equipment that vents radon gas through pipes to the exterior of the unit. These pipes most often run on the exterior of a building, but they can run through the interior of the unit and exit through the roof. Therefore, the association has a role in the mitigation process.

The typical association's governing documents prohibit an owner from making any addition or alteration to the exterior of the unit without the prior approval of the association. A provision of this sort would require the owner to obtain the approval of the association board to install a radon mitigation system on any portion of the exterior of the building.

If radon is detected in a unit in excess of acceptable levels, a request for approval to install a radon mitigation system should only be denied by the association if the system would not conform to federal or state regulations, or if the work is proposed to be performed by a nonlicensed mitigation contractor.

The board can require owners to submit detailed plans of the proposed mitigation system for its review and consideration, and to condition its approval on a variety of criteria. For example, the association can require that a professional, licensed radon mitigation contractor perform the work in conformity with applicable federal and state guidelines. The impact on a roof warranty can also be considered.

There are radon mitigation systems that vent through the exterior of a building and systems that vent through the roof. There are pros and cons to each, so the board is going to have significant discretion in approving an owner's proposal if both types of systems will work. Working together, a unit owner and the board should be able to balance the interest of the unit owner to resolve a radon issue with the interest of the board in minimizing the aesthetic impact of the radon mitigation system.

• 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.