Lawyer passes baton on educating board members, unit owners

After more than 13 years of having the privilege of writing this column, I am passing the baton.

Although the column is called “Condo Talk,” it has addressed legal issues concerning the full variety of homeowner associations in Illinois; that is, condominium associations, master associations and common interest community associations.

I took a look back at my first column from Nov. 5, 2011. At that time, I stated that the purpose of the column is to educate homeowner association board members, unit owners and the professionals that serve associations. I also noted that there is no “one size fits all” answer to legal issues. Why is that?

Importantly, most other states have a uniform set of laws that regulate all types of homeowners’ associations. In Illinois, each type of homeowners’ association is legally distinct and governed by a stand-alone statute directed at the particular type of association. While these statutes may include similar provisions on occasion, more often than not they treat similar issues differently. So, knowledge of the laws involving one type of association are not always transferable to another type of association. It is important to know what type of association you are involved with, as a preliminary undertaking to address legal issues.

Further, each of these associations is also governed by a declaration of condominium or declaration of covenants and bylaws for that association; these documents are not identical from association to association. And of course, most legal issues are fact specific, and the change in the seemingly most innocuous fact may change legal guidance.

So when a board member, owner or property manager gives a board “legal advice” based on their experience in another state, or for a different type of association, or without reviewing the governing documents for the particular association, please take it with a “grain of salt” and consult with legal counsel.

I also noted that the law is seldom black and white. That is why lawyers include useful qualifiers in their opinions. Nonetheless, I have shaded the gray as close to black and white as I could when responding to questions posed by readers.

Importantly, the column has not been intended to provide legal advice. Rather, it is intended to make readers recognize issues that have legal significance and repercussions. Recognizing issues is the first step in seeking out the appropriate professional guidance. Why is this important?

Knowledge increases the likelihood that an association operates, legally, efficiently, and without undue personal liability exposure of board members. The amount of litigation between owners and associations has increased dramatically over my forty or so years of practice. A number of these cases end up in the appellate court, and many of these appellate court outcomes are not favorable to associations. Avoiding bad outcomes, or avoiding litigation entirely, is minimized by following the relevant statute and an association’s governing documents.

That all said, I trust that Condo Talk has accomplished, and will continue to accomplish, its mission! To that end, the real success of this column depends on the questions submitted by readers. Please continue to submit questions to CondoTalk@ksnlaw.com.

Let me introduce you to the next author of Condo Talk: My partner, Matthew Moodhe, who is a well-seasoned and respected association attorney, will take over authorship after the new year. Matt will add a new perspective to Condo Talk, and to the questions posed by readers.

Let me close by thanking you for your support, and I wish all a happy and healthy New Year!

• 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.