Can absent board member assign proxy to another?
Q. I am on the board of my condominium association, and I cannot attend all the board meetings in person because I travel for work. Can I give my “proxy” to another board member to vote on my behalf during the board meetings?
A. In Illinois, the law does not allow a condominium board member to vote or act via a proxy on any matter. The primary reason behind this prohibition is that a board member is a fiduciary and, as such, has a personal obligation to act in the best interests of the association. A board member vote should be following full discussion, consideration, and deliberation on the association issue.
The law does, however, allow a board member to participate in and vote at a board meeting through the use of a conference telephone or other reliable communications platform. The requirement is that all people participating in the meeting must be able to hear and communicate with one another. They do not necessarily need to be visible to everyone. But the remote board members must be able to hear and be heard by everyone. This is best accomplished with a speaker phone or with one of the numerous remote communication platforms. The board members attending remotely would be counted toward a quorum and can vote.
Q. I live in a medium-size, self-managed condominium association. The board handles all the financial accounting and payment of bills. Should the board members be bonded or required to carry fidelity insurance?
A. A condominium or common interest community association in Illinois, with 30 or more units, is required to obtain and maintain fidelity insurance covering persons who control or disburse funds of the association for the maximum amount of coverage available to protect funds in the custody or control of the association, plus the association reserve fund. So, the board of your association should obtain and maintain this insurance.
Professionally managed associations also need protection of a fidelity bond. If an association is professionally managed, the management company, if it is responsible for the funds held or administered by the association, must also maintain and furnish the association with a fidelity bond. The bond must be for the maximum amount of coverage available to protect funds in the custody of the management company at any time. The association pays the cost of the fidelity insurance and fidelity bond, unless the management contract between the association and the management company says otherwise.
Q. I live in an older condominium association building where most of the windows are failing. The board recently adopted a special assessment against all unit owners to pay for the necessary window replacements. I and other owners have windows that are still functional and we have objected to my having to pay for other owners’ windows. We read in the Illinois Condominium Property Act that windows are limited common elements. Doesn’t that mean that the owner of the unit served by the windows has to pay for the cost to replace the windows?
A. It depends upon the precise language in your declaration and bylaws. Legally, limited common elements are simply a subcategory of the common elements. Unless the association’s declaration states otherwise, all portions of perimeter windows serving a unit are considered limited common elements. More importantly, however, most condominium declarations specifically provide that the association can charge back the cost of the maintenance, repair, and replacement of unit windows to the individual unit owner. In the absence of this specific provision in the declaration, the cost of maintenance, repair, and replacement of the windows would be borne by the association and a special assessment to fund the cost could be levied against all of the owners. A careful reading of the declaration and bylaws is necessary in this scenario.
• 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.