Who must pay for damage by rogue raccoon?
By David M. Bendoff
Q: A raccoon entered a unit in our association through damaged common element siding. The association is responsible for the maintenance of the siding. The owner claims the raccoon damaged the inside of the unit. That owner is now demanding the association reimburse her for the damage caused by the raccoon. Is the association responsible for this owner's unit damages?
A: Whether or not the association has exposure to liability here depends on several factors. Initially, the association is not an insurer and is not automatically liable for damage that results from a failure of the common elements.
However, the association will be responsible for the owner's unit damage if the association knew, or should have known, of the damage to the siding, and if the association failed to take timely or appropriate action to repair the damaged siding, and if that failure caused damage to the owner (like giving animals a portal into a unit). That is a question of fact, and the burden of proof, is on the owner.
That said, now knowing of this common element siding damage, the association needs to take prompt and appropriate action to repair it.
Q: My condominium unit was damaged as the result of a storm. My investigation indicates my personal insurance and the condominium association's property insurance both cover a portion of the damage to my unit. Whose insurance should (my insurance or the association's insurance) cover this damage given the "overlapping" coverage, or is it split between the two policies?
A: This situation is addressed in Section 12(f) of the Illinois Condominium Property Act. If at the time of a loss under the association's insurance policy there is other insurance in the name of a unit owner covering the same property covered by the association's policy, the association's policy is primary insurance.
This means the association's insurance would pay the claim first. The owner's insurance would only pay a portion of the claim if the association's insurance coverage is insufficient to cover the entire loss.
Q: Can a condominium association legally impose a percent surcharge on rental units by adopting a rule?
The current surcharges collected by the association are not identified in any budgets, seem excessive and can't be directly correlated to any extra services, such as special trash pickup or cleaning fees. It's worth noting that our bylaws only limit rental of less than the entire unit or for hotel or transient purposes.
A: The validity of leasing fees charged by associations in Illinois is unsettled in the appellate court. Such fees would arguably be more defensible if they are associated with the administrative costs of dealing with leased units, rather than being imposed as a profit center or imposed to deter leasing of units.
Q: I was reading one of your columns that discusses a sale of an entire condominium property that is turned into rental apartment property. Do the condominium unit owners receive a part of the sale price? Also, wouldn't the condominium owners have to approve the sale?
A: In a sale of an entire condominium property, under Section 15 of the Illinois Condominium Property Act, it is the owners of the units who receive the entire purchase price, less credits commonplace to any real estate transaction.
Yes, the owners need to approve the sale. The percentage of owners that must approve the sale depends on the number of units in the association. Typically, outside of the city of Chicago, a transaction requires approval of 75% of the unit owners.
• 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.