Relevancy is key when reviewing association rules
Q. Our homeowners’ association is about 15 years old. The board has appointed a commission to review and suggest updates to the rules that are about as old as the association. We have not gone through this process before. What sort of general guidance should the board give to the commission to allow for an efficient and fruitful process?
A. I do have some general guidance when reviewing rules for the purpose of updating them. The task of reviewing rules is certainly easier for an association that has been around, as the association will have the benefit of actual experience with the existing rules as a guide.
With that in mind, rules that repeat covenants in the declaration should be removed, as it is not necessary and only serves to increase the size of the rules. A general rule incorporating by reference all the covenants in the declaration is a more efficient approach.
Similarly, make sure that rules don’t augment or diminish a right granted in the declaration, as that can only be done by an amendment to the declaration.
Rules that have proven to be irrelevant should be removed from the rules.
New rules should be added to address issues that have come up that are not covered by the current rules.
Existing rules should be “tweaked,” if necessary, based on actual experience with the rules.
Make sure that the text of any exhibits to the rules mirrors the language of the rules.
Include appropriate enforcement procedures.
Some associations will assemble rules from other associations and add items to their own rules because a provision sounds good. However, I suggest avoiding including additional rules that don’t address actual issues or likely issues at a particular association.
The rules are intended to be self-enforcing by residents. However, residents won’t generally read a large, cumbersome document.
Q. I live in a small common interest community in Illinois and serve on the board. Our declaration essentially states that the board, at the expense of the association, shall contract for or otherwise cause the removal of snow from all driveways, sidewalks and pedestrian walkways within the maintenance area.
Is the association required either by the declarations or Illinois law to apply salt as part of the snow removal process?
A. The board of directors of the association has a fiduciary duty to remove salt from the areas described in the declaration. In carrying out that fiduciary duty, the board should consult with, and follow the written guidance of, its snow removal professional as to when and where salt should be used to assist with the removal of snow. This should maximize safety. In addition, reliance of advice of an expert is a defense in a breach of fiduciary duty claim brought against the association.
Q. I was scheduled to be traveling on the date of our association’s upcoming annual meeting. So I could have my vote cast, I gave my proxy to another owner to vote on my behalf. My travel plans have changed, and I will now be able to attend the annual meeting in person. If I attend the annual meeting, can I vote or do I have to permit the person to whom I gave my proxy to vote on my behalf?
A. A person can rescind a proxy given to a third party by doing so in writing. This writing should be issued to both your proxy holder and to the association secretary. However, you could generally vote in person at the annual meeting anyway. However, when you arrive at the annual meeting, you should advise whoever is checking persons that you are there and will vote, so that a ballot is not given to the person to whom you gave a proxy.
• 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.