Leaky garage roof leads to clash between resident and association

Q. Our small townhome association is self-managed. A resident of a unit used the garage portion of the unit to store personal property. The association inspects roofs periodically, and repairs are made as soon as an issue is noted. The resident of this unit either did not notice or did not care that the garage roof had a very small leak that, over time, resulted in damage to his stored property. When notified of the leak by the owner of the unit, the association immediately had the roof repaired. The repair involved replacing a couple of inches of grout. When the roofer went into the garage of the unit, he noticed that there were stains on the ceiling that indicated a small leak had been ongoing for a very long time.

The resident of the unit now claims it is the association’s duty to compensate him for the damaged personal property. The association contends that no damage would have occurred to the resident’s property if he had reported the evidence of the leak when it began. Is the association responsible for this damage?

A. Legal responsibility for damage to personal property is a common situation in many associations. If the damage to the unit resident’s personal property is due to the association’s failure to properly maintain the roof, the resident may have a good claim that the association should pay for the damaged personal property.

To demonstrate negligence (breach of the board’s fiduciary duty) the owner will have to prove that the board knew or should have known of the roof leak and that the board did not take timely and/or appropriate action to repair the leak. Negligence is a question of fact, based on the facts and circumstances in each case.

The owner may have a difficult time prevailing here. The fact that the association performed periodic roof inspections, that the association promptly repaired the leak when reported, and that the residents appear to have ignored evidence of the leak all weigh in favor of the association.

Q. Does a condominium association have to provide owners the opportunity to review, and provide written comments on, proposed rules before the rules can be adopted by the board?

A. Not exactly. Rules covering the details of the operation and use of the property may be adopted and amended by the board at a board meeting. The adoption of rules does not require the vote of the unit owners, and the board does not have to provide a period of time for the owners to provide written comments on the proposed rules.

However, the Illinois Condominium Property Act does provide that there must be a meeting of the unit owners called for the specific purpose of discussing the proposed rules before there is a meeting of the board to adopt the rules. The two meetings, the owners’ meeting and the board meeting, can be held back-to-back on the same evening. Further, no owner quorum is required at the meeting of the unit owners held to discuss the proposed rules.

Note that written notice of the unit owner meeting must be mailed or delivered giving members no less than 10 and no more than 30 days’ notice of the time, place and purpose of such meeting. The notice of the unit owner meeting must also include the full text of the proposed rules and regulations. Notice of the meeting of the board to adopt the rules would have to be issued to the board members and posted 48 hours in advance of the board meeting. Most associations include the notices of both the owner meeting and the board meeting in the same mailing.

• 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.