How can our condo association update outdated declaration?
Q. The governing documents for our condominium association are about 25 years old. In addition to being outdated, the declaration makes references to the developer and developer rights that are no longer applicable. Can you describe the process to update the declaration to conform to the Condominium Property Act, and can the process be used to eliminate the developer references?
A. The association can amend the declaration, bylaws, or other condominium instrument as may be required to conform to the Condominium Property Act. This can be accomplished by vote of two-thirds of the members of the board of managers (without unit owner approval) or by a majority vote of the unit owners at a meeting called for this purpose. Many associations with old declarations remove developer references under this process. But, each board should consult with their association attorney on that particular issue.
If the association’s governing documents are updated by vote of two-thirds of the members of the board (and not by the owners), the owners with 20% of the votes of the association can file a written petition with the board “objecting” to the amendment. The petition has to be filed, typically with the secretary of the board, within 30 days of the date the board approved the update amendment. The board would have to call a meeting of the unit owners within 30 days of the filing of such a petition. The purpose of the owners’ meeting would be to consider the board’s vote to approve the update amendment. However, unless a majority of the votes of the unit owners of the association are cast at the meeting to reject the action, it is ratified whether or not a quorum is present.
Note too that there is a similar procedure available to both master associations and common interest community associations to bring their governing documents into conformity with applicable law. I have seen many associations rely to their detriment on outdated governing documents. These simplified amendment procedures should be investigated by the board of associations from time to time to ensure that their governing documents are up to date.
Q. The parking spaces in our condominium association are limited common elements. Each parking space is shown on the plat of survey attached to the declaration, with specific dimensions. The asphalt on the parking area where the parking spaces are located was recently replaced. This required the yellow stripes identifying the boundary of each parking space to be repainted. However, the stripes for the parking spaces were moved about a foot, and my space is now closer to a wall. This makes it difficult to open my car doors. Did the board have the right to move the parking spaces like this?
A. This issue comes up rather often. The correct location of the stripes in the parking area for the limited common elements parking spaces is to be as shown on the plat of survey. If the stripes do not reflect the layout on the plat, you have significant grounds to require that the space be located and striped as depicted on the plat. If you cannot open your car doors, you should discuss it with the board and try to work out a reasonable resolution. Additionally, when a board is considering work on a parking area that includes limited common element parking spaces, it would be wise to include a provision in the vendor contract that the stripes will be repainted as depicted on the plat.
• 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.