Bully board president should be booted by vote of owners

Q. The board president for our association is a loud, obnoxious, bitter bully. He is retired and does not seem to have anything else going on in his life. He thinks he knows more than everyone else, including the various professionals we retain to provide guidance to the board on a variety of matters. He verbally badgers other board members until they agree with his position on issues. Quite simply, people are afraid of him, so his view on issues rules the day. This has resulted in many awful board decisions. Rather than challenge him, board members have resigned, and it is difficult to find candidates for the board. What can the board do?

A. There appears to be an increase in this personality type making it onto association boards. They just don’t play well with others. It can be very detrimental to board operations and to the association. Frankly, in my view, this personality type has no place sitting on a board as a fiduciary of the owners.

The other board members need to confront this person, and make their own decisions and not fall prey to this person’s badgering. I realize this may be difficult, but a person like this is typically more bluster than a real threat.

Moreover, board members need to stand up and remove this person as president of the board. Depending when this person’s term on the board ends, the board should consider a couple of other approaches. The board may want to consider seeking this person’s removal from the board. That would require a vote of the owners. Or, a better candidate does need to be found, and elected to the board at the next annual meeting when this person’s term expires, through aggressive proxy solicitation from other owners.

Q. Board member terms for our association are one year. As a result, the terms of all three board members expire annually. What happens if we do not have any candidates, or three candidates, for the board this year, and the board members’ terms expire?

A. Despite the end of a board member’s term, they continue in office until their successor is duly elected. If there are no candidates for the board, the current board members would continue in office.

The association should consider amending the declaration/bylaws to create staggered board terms. As a result, two board members would be elected in a year, and one board member elected the next year. This would also require that board terms be increased to two years. In this way, the entire board would not be up for election each year, and it may be easier to find enough candidates to fill board seats.

Q. About six years ago, our association took possession of an owner’s unit after an eviction for nonpayment of assessments. The delinquency for the unit has been paid off. Nonetheless, the association continues to lease out the unit because the owner has not come forward. Despite attempts, we cannot locate the owner, who has a very common name. As a result, the association has collected more money in rent than is due to the association. Who is entitled to the surplus that is being generated from leasing this unit?

A. The association should use the surplus to pay assessments as they become due for the unit, and to pay for maintenance, repairs and replacements within the unit as may be required of the association under the lease between the association and the tenant. Any remaining surplus belongs to the unit owner against whom the association has the judgment. Importantly, the surplus does not belong to the association.

The association should either keep the surplus in a separate account or keep detailed records showing the balance of the surplus. If the owner does not return to claim the surplus, the surplus will eventually have to be turned over to the state of Illinois after expiration of the statutory period for unclaimed property.

• 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.