Board could ask owner to use a water detector
Q. A unit in our association has been the source of multiple water intrusions into the unit below, causing substantial damage each time.
Each situation appears to have been the result of some sort of negligence of the upstairs unit owner that originates in his only bathroom.
For example, in two incidents the owner was filling a bathtub, and then became distracted by something else, and the bathtub overflowed. In another situation, a toilet water supply line developed a small crack and leak and eventually broke and causing a lot of water to enter the unit below.
There were other situations as well. One board member discussed a water detector that could be installed in the at-fault owner’s unit. It won’t stop the owner’s negligence, but it may allow the owner an opportunity to turn off the water before it enters another unit. Can the board require the owner of the unit that is the source of the water leaks to install a water detector in this bathroom?
A. Given the history, and the causes of the water issues, I don’t think it is necessarily unreasonable to require the owner of the upstairs unit to install a water detector in the bathroom. It is going to be less expensive than having the association’s deductible charged back to the at-fault unit, or a lawsuit to address the owner’s conduct. That said, I suggest that the board have a meeting with this owner, and discuss what preventive measures they can take to avoid this recurring issue.
Q. I live in a small townhouse-style condominium community. The board is composed of five members. The situation is that we have a married couple that own and live in only one unit that are both sitting on the board. This has resulted in controversy among some of the owners on the voting that has taken place.
We have just been fired by our last management company after one year and was told by them that it was because they felt that this situation was illegal and our president refused to make necessary changes. I have offered to replace one of those members but again our board president refuses to act on this situation. Is this legal? As far as I understand, it is against the Illinois statutes.
A. In an Illinois condominium, if there are multiple owners of a single unit, only one of the multiple owners is eligible to serve as a member of the board at any one time. This is clearly set out in Section 18(a)(1) of the Condominium Property Act. Therefore, it would be improper for the two owners of a single unit to sit on the board at the same time. I see two options. One of the two needs to step down. Alternatively, the board could consider that the one of the two board members in question who received the lesser number of votes was not duly elected, and not on the board. Either way, this would then allow the board to fill the vacancy.
Q. Our association just did a review of rules and implemented several changes. The most impactful change for owners is a rule that makes owners responsible for repair and replacement of limited common elements. This includes sidewalks to homes and the porticos (porches) that are the entry to our homes. When I read sections of the Illinois Condominium Property Act, it seems that limited common elements are considered common elements and are to be budgeted and paid by the association through assessments. Can you clarify this?
A. This is addressed in the Illinois Condominium Property Act (“Act”). Limited common elements are a subset of common elements (See Section 2(s) of the Act). In general, the condominium association is responsible for maintenance, repair, and replacement of the common elements (See Section 18.4(a) of the Act). However, the declaration for a condominium association may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned (See Section 9(e) of the Act).
That said, the declaration of condominium for many associations imposes the actual responsibility to perform maintenance, repair and replacement of the limited common elements on the unit owner assigned the limited common element. This delegation of responsibility to owners, in light of language in the Act discussed above, is of questionable validity. However, it has not been the subject of an appellate court decision.
Nonetheless, an attempt to delegate this authority by way of rule alone would most likely not withstand judicial scrutiny.
• 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.