Boards must follow due process to levy a fine

Q. I am a property manager. I have managed scores of condominium associations over the years. The process that I see boards mess up more than just about anything else concerns the levying of fines. That is, a lot of boards just levy a fine if they think there has been a violation of rules. Please describe the correct procedure, so that I may share with my boards.

A. Your experience is similar to my perception. The board of a condominium cannot simply levy a fine if it thinks there has been a violation of rules. It must follow a statutorily mandated procedure.

Section 18.4(l) of the Illinois Condominium Property Act addresses the issue. The board has the power to levy reasonable fines for violation of the declaration, bylaws, and rules and regulations of the association after notice and an opportunity to be heard.

Procedurally, the board must issue a written notice of violation to a resident who the board contends is in violation of the declaration, bylaws and/or rules and regulations. The notice of violation must either include the date, time and place of the hearing, or instruct the owner how to request a hearing.

After the board conducts the hearing, the board may levy a fine if the “evidence” supports that decision. Similarly, if the resident does not attend the hearing, or does not request a hearing, the board may find the owner in default and levy a fine.

The bottom line is that the board of a condominium cannot levy a fine unless it has followed the required statutory “due process.”

Q. Our condominium was created in the early 1970s. Several of our board members have suggested that we have the declaration of condominium amended to bring it into conformity with the current Condominium Property Act. Does this require owner approval?

A. Section 27(b(i) of the Illinois Condominium Property Act governs this issue. An amendment to the declaration to conform to the Act can be adopted by vote of two-thirds of the board of managers, without a unit owner vote. Your declaration, from the 1970s, would be woefully out of sync with the Illinois Condominium Property Act.

Note too that there is a similar process to bring the declaration of covenants for a common interest community association into conformity with the Illinois Common Interest Community Association Act. Most declarations for common interest community associations were drafted and recorded well before there was an Illinois Common Interest Community Association Act. Therefore, most declarations for common interest community association would be woefully out of sync with the Illinois Common Interest Community Association Act.

Q. What is the longest board member term that is permitted for a condominium association and for a common interest community association?

A. In Illinois, the maximum board member term for a common interest community association is four years. The maximum board member term for a condominium association is two years. For both types of associations, board members may succeed themselves, which means that they can be reelected at the end of their term on the board.

In a common interest community association, if the board member terms are more than 24 months, the terms are going to have to be staggered. This is because an election must be held no less frequently than once every 24 months in a common interest community association. In a condominium association, if the board member terms are more than one year, the terms are going to have to be staggered. This is because an election must be held annually for a condominium.

• 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.