Board ponders how to pay for maintaining dog area

Q. The dog owners in our condominium association are provided a large dog run to take their dogs to do their business. Disposal bags and a garbage can are also provided there for dog waste. Unfortunately, many owners do not clean up after their dogs. Can the board of our association charge a fee to owners who have a dog? The fee is intended to pay for the maintenance and cleanup of the dog run.

A. This issue has not yet been addressed by the Illinois appellate courts, so the answer is not settled. However, charging a fee to one group of owners and not to another group of owners arguably creates classes of ownership. Condominium associations are generally not permitted to establish classes of ownership. Nonetheless, many associations charge questionable fees to owners. Unless and until challenged and set aside by a court, boards often make a business decision to charge such fees, like the dog fee your association may charge, notwithstanding the potential for a successful legal challenge.

That said, do note the declaration of a common interest association can provide for classes of ownership, so the declaration for a common interest community association would have to be reviewed to determine if classes of membership are permitted.

That said, creating classes of ownership may not be the only basis for opposing fees like a pet fee.

Q. I am on the board of my condominium association. Annual assessments are allocated to owners based on each unit’s percentage of ownership assigned to the units. We are considering a special assessment to replace the roof. A couple of the board members want to allocate the special assessment equally to all unit owners. Is that permitted?

A. There is no authority to levy a special assessment in an Illinois condominium on an equal per unit basis. Rather, the special assessment, just like the annual assessment, will need to be allocated based on each unit’s percentage of ownership in the common elements.

Q. I seem to recall that you have addressed this issue before, but I don’t remember the answer. Can a unit owner videotape a board meeting?

A. The answer is “yes,” if you live in a condominium or master association. The Illinois Condominium Property Act provides that any unit owner may record the proceedings at board meetings, or portions thereof required to be open to owners, by tape, film or other means. Note though that the board of directors may prescribe reasonable rules and regulations to govern the right to make such recordings. The taping of meetings can be disruptive and create safety issues. A board should address these issues by establishing rules that will ensure the least amount of disruption without impairing unit owner rights.

Q. We have a president of our association who acts more like a sole proprietor of their own business than a member of a board of directors. For example, the board president recently signed an extension of a service agreement with a vendor without board approval. The extension also increased the fee payable to the service provider. Can the extension be terminated? What’s the board president’s exposure to liability here?

A. Unless, the board properly authorized the president to take this action, the board member’s action was beyond the scope of their authority. However, the board president would have what is known as “apparent authority,” and the extension could not be terminated for that reason.

The board member who takes action beyond the scope of their authority is potentially liable for the increased fee payable to the service provider. The board, if it is so inclined, could ratify the action of the board member at a duly called and held meeting of the board.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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