Condo board can sue developer over roof defects

Q. The board of our condominium association filed a construction defects lawsuit against the developer of the association. The case concerns a defective roof. However, our condominium declaration is unique because the association does not own the roof and it is not considered part of the common elements; it is owned collectively by the individual owners. Wouldn’t the individual owners need to be named as plaintiffs in the suit?

A. The legal designation of your association roofs is definitely unique. Most condominium building roofs are clearly defined as common elements and the association’s responsibility. However, governing documents can be different, so it is important to have legal counsel review your association’s declaration and bylaws carefully.

With respect to you litigation question, this issue is addressed in Section 9.1(b) of the Illinois Condominium Property Act. That section provides that “the board of managers shall have standing and capacity to act in a representative capacity in relation to matters involving the common elements or more than one unit, on behalf of the unit owners, as their interests may appear.” Therefore, the board may bring the suit in its name, on behalf of the owners. The individual owners would not be named as plaintiffs/parties to the suit.

Q. A contractor for the association refuses to correct poorly performed work at our condominium buildings, and it will cost six figures to correct. The board wants to file suit against the contractor. However, one of the board members noted that the declaration for our condominium requires the board to obtain the approval of two-thirds of the owners before filing a suit. We have a difficult time getting our owners interested in any association issues, let alone filing a lawsuit. Do we really need to get this owner approval?

A. Fortunately, the board does not need to obtain owner approval to proceed with the suit here. Section 18.9(a)(i) of the Illinois Condominium Property Act states any provision in a condominium instrument is void as against public policy and ineffective if it limits or restricts the rights of the board of managers by requiring the prior consent of the unit owners in order for the board of managers to take any action, including the institution of any action in court or a demand for a trial by jury. This provision expressly supersedes the language in your declaration.

Q. The declaration for our common interest community association is very old, and predates the Illinois Common Interest Community Association Act. Is our association required to amend the declaration to bring it into conformity with that act?

A. Common interest community associations (typically single family home and townhouse associations) that are governed by the act were not required to amend their declaration to conform to the Illinois Common Interest Community Association Act.

However, most of the provisions of the act were automatically applicable to all common interest community associations in Illinois whether they amended their governing documents or not. So, those associations were required to revise their procedures and be in full compliance with the provisions of the act many years ago (2012).

However, we still come across many common interest communities that simply have not complied with the act and they continue to follow contradictory provisions in their declaration and bylaws.

One of the ways that a common interest community association can reduce the likelihood that their actions do not conflict with the act is to amend their declaration to conform to the act. Such an amendment process can be approved rather easily by the consent of two-thirds of the board of directors, without an upfront vote of the members/owners of the association. (Note that the same process is available to a condominium association to bring its declaration into conformity with the Illinois Condominium Property Act.) It is a very worthwhile project for your board to consider.

• 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.