Five candidates for 3 open seats means condo board must hold election
Q. Our association has always had three candidates for the three open seats on the board every year. The candidates are simply announced as the members of the board. This year, we have five candidates for the three positions. What do we do?
A. The association is going to have to hold an annual meeting of the owners to elect the required number of board members from among the various candidates. This will require the association to issue a notice of the annual meeting to the owners that identifies the date, time, place and purpose of the meeting. Owners will be able to vote at the annual meeting in person or by proxy. The appropriate notice of meeting, proxy, and ballot will have to be prepared. The board should review the association’s bylaws and the applicable statute, and consult with counsel for the details.
Q. We have several units in our building that have incurred damage to their window casings and interior walls due to water penetration from the outside and through the exterior wall system. The association has had the leaks repaired with tuckpointing of the common element exterior wall and common element lintels have been replaced over the windows. Now the question is who is responsible for the interior repairs to the units — the unit owners or the association? Verbiage in the declaration says unit owners are responsible for everything from the walls inward but since the damage was caused by the failure of the common element exterior wall, we are wondering if that would make the association responsible for the cost of these interior unit repairs.
A. The association is not automatically responsible (legally known as “strict liability) for such interior unit damage in the situation you describe. This is often misunderstood by owners, but the association is not simply assumed to be responsible for such interior unit damage merely because the water infiltrated a unit from the exterior common elements. However, the association would only have exposure to liability for the interior damage if that damage resulted from the association’s negligence. In your scenario, the burden is on the owner to prove that the association was negligent and directly caused the interior unit damage. To demonstrate negligence (often referred to as a “breach of the board’s fiduciary duty”) the owner would have to prove that the board knew or should have known of the common element source of the leak and that the board did not take timely and/or appropriate action to repair the common element source of the water infiltration. A court can determine whether the association was negligent based on the facts and circumstances in each case.
Additionally, when it comes to association negligence or liability, there is often a difference between an isolated water leak and continued water leaks from the common elements. The latter can be used as evidence that the association should have been aware of a pattern of common element leaks that need to be fully addressed or repaired and, if not, may support a claim of breach of duty or negligence.
Moreover, owners often claim that the lack of a preventive maintenance program by an association is sufficient evidence of “negligence.” That is simply not the case. Each situation has to be investigated and determined on a case-by-case basis.
The board should consult with the association’s counsel and if there appears to be evidence of association negligence. If there is sufficient evidence to establish the association’s negligence, then the association’s general liability insurance could be triggered. The association’s general liability insurance is different from the association’s master property insurance coverage.
• 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.