Association continually collects for '13th' month

Q Can our condominium association charge an extra monthly assessment for multiple years? The first time this extra fee was assessed, the manager announced the association needed more money, and they would just add a 13th monthly assessment instead of raising the association fees. This was presented to the owners as a temporary, one-time thing. The next year, the association did the same thing, and again this year. Can they continue to do this, year after year?

A. The board of a condominium association can levy a special assessment, pursuant to Section 18(a)(8) of the Illinois Condominium Property Act. As the board for your association did here, the amount of the special assessment could be equal to one month's assessments, and payable in a lump sum as a "thirteenth assessment." The board can generally do this each year.

However, as we have noted from time to time here, under certain circumstances, the unit owners have an opportunity to call a meeting of the association members and to vote to reject a special assessment after it is adopted by the board. In a "nutshell," when a board adopts regular and special assessments in the current year that exceeds by 15% or more of the combined total of regular and special assessments adopted in the prior year, owners have a right to call a meeting and to vote to reject a special assessment.

That is, if any separate assessment adopted by the board results in the sum of all regular and separate assessments to exceed 115 percent of the regular and separate assessments payable during the preceding year, owners with 20% of the votes of the association have a right to file a petition with the board within a specified number of days of the board's adoption of the special assessment. If the board of a condominium association receives such a petition, it should consult with counsel immediately.

Q. We recently received notice that the association will be painting the hallway side of each unit entry door. The notice also indicates the cost will be charged back to each owner. I was under the impression that anything outside of my unit was the association's responsibility. Can you clarify this?

A. Perimeter doors of units are deemed a limited common element appertaining to that unit exclusively, pursuant to Section 4.1(a)(5) of the Illinois Condominium Property Act. Section 9(e) of the act provides that the condominium declaration may provide for the assessment, in connection with expenditures for the limited common elements, of only those units to which the limited common elements are assigned. If that language is found in the condominium declaration for your association, the cost of painting the door by the association can be charged to each owner.

Q. We own a condominium that is one of 19 units in the association. We want to sell our condominium. We have learned that one of the owners owns more than 10% of the units, and that a buyer cannot obtain a mortgage loan, and that we can only sell to a cash buyer. This, of course, limits the pool of buyers for us and also will affect what we might be able to sell our unit for. Does the Illinois law provide us with any recourse?

A. The secondary mortgage market guidelines provide, among many other items, that no single entity (the same individual, investor group, partnership or corporation) may own more than 10% of the total units. However, contrary to your understanding, failure of an association to meet the secondary mortgage market guidelines does not mean you are limited to a cash buyer, or that a buyer cannot obtain a mortgage.

If a condominium does not meet the secondary mortgage market guidelines, an owner/purchaser will have to look to a local lender that does not bundle and sell units into the secondary mortgage market, and usually at a higher interest rate. The real estate agents in the transaction should be able to assist in this regard.

Some associations do amend their declaration to prohibit a single entity from owning more than 10% of the units.

• David M. Bendoff 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.