Can board remove swimming pool without owner approval?
Q: The board members of our condominium have done a great job in the last several years to address previously neglected common elements of the buildings. The association has a swimming pool that is very old and needs major repairs, estimated to cost tens of thousands of dollars. Spending this amount wouldn't make the pool new, but would make the pool functional. The cost to keep the pool running every summer is also very expensive. The board has been discussing tearing out the pool out and replacing it with landscaping. My question is whether the board can make this decision without unit owner approval?
A: This is an issue that comes up from time to time, as boards struggle to pay the costs of maintaining the property. In my view, the decision to remove a common element amenity, like a swimming pool, cannot be made unilaterally by the board and requires owner approval. Section 18.4(a) of the Condominium Property Act provides that the board of managers of a condominium is responsible for the maintenance, repair, replacement and improvement of the common elements. It doesn't say anything about “eliminating” a common element. This would include the common element swimming pool. In general, in my view, a board cannot make the unilateral decision to permanently eliminate a common element amenity. While there may be circumstances under which the board could close the swimming pool on a temporary basis, owner approval would generally be required to do so on a permanent basis. The board should consult with counsel to address what level of owner approval would be necessary to eliminate a common element amenity.
Q: A board member in our condominium would be affected by a decision of the board to charge back certain repair costs to owners of first floor units with patios. Does this board member have a conflict of interest that requires him to recuse himself from the discussion and Board vote on this issue?
A: The issue you raise here is not a conflict of interest under either the Illinois Condominium Property Act or the Illinois General Not For Profit Corporation Act. Many issues board members vote on have an economic impact on that board member (i.e., payment of more or less in assessments); however, that is not a technical conflict of interest under either statute, and would not require board members to recuse themselves from the discussion/vote. That said, board members do have a fiduciary responsibility to act in the best interest of the association and the owners and not in a board member's own personal self-interest. If a board member is unable to do so on a particular issue, the board member should recuse themselves from the vote on that issue. The type of matters that are addressed in the Illinois Condominium Property Act or the Illinois General Not For Profit Corporation Act regarding conflict of interest would be relevant if the board member (or a member of the board member's family) would actually have a contract with the association to do the work in question, for example.
Q: We are a self-managed condominium association. Board members use their personal vehicles to run all sorts of errands for the association. Can board members be reimbursed for their mileage expense?
A: Board members can absolutely be reimbursed for mileage expense incurred in carrying out their duties and responsibilities as board members. Board members can also be reimbursed for other reasonable expenses incurred in carrying out their duties and responsibilities as board members. However, any reimbursable board expenses should be very well documented, incurred during and directly related to association business and must be approved by a majority of the board participating at an open board meeting.
• Matthew Moodhe 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.