Association can stipulate lack of inspection
Q. Is a condominium board permitted to conduct an inspection of a unit in connection with preparing the 22.1 disclosure to a prospective purchaser?
A. By 22.1, you are referring to Section 22.1 of the Illinois Condominium Property Act. That section provides that "in the event of any resale of a condominium unit by a unit owner other than the developer, the owner shall obtain from the board of managers and shall make available for inspection to the prospective purchaser, upon demand," certain documents and information.
The disclosure is to include "a statement that any improvements or alterations made to the unit, or the limited common elements assigned thereto, by the prior unit owner are in good faith believed to be in compliance with the condominium instruments."
The Condominium Property Act grants the board the right "to have access to each unit from time to time as may be necessary for the maintenance, repair or replacement of any common elements or for making emergency repairs necessary to prevent damage to the common elements or to other units." That does not expressly grant a right of access to conduct an inspection to complete the 22.1 disclosure.
However, absent an inspection of the inside of the unit, it may be difficult to provide an accurate response to this question, at least insofar as improvements or alterations made to the unit are concerned. And depending on the location of the limited common elements serving the unit, it may be difficult to respond with respect to improvements or alterations made to the limited common elements without an inspection.
I do know some associations that conduct inspections of units before responding, and have developed rules to establish the process. Others that don't do an inspection frequently qualify the disclosure by noting that an inspection has not been done. That might be a potential problem for both the buyer and the association if any improvements or alterations do not comply with the condominium instruments.
This may be an issue for the legislature to address before it ends up in a courtroom.
Q. The board of directors of my homeowners' association is violating the provisions of the association's recorded declaration. Outdoor light fixtures are installed on many of the homeowners' lots. The declaration provides that the association shall maintain, repair and replace common area fixtures, including light fixtures.
In spite of the words of the declaration, a homeowners' petition delivered to the board, and various individual letters sent to the board by homeowners, the board has repaired only a few of the broken and missing light fixtures. What do you suggest homeowners do? Sue the board? Fix the light fixtures themselves?
A. Initially, based on your description, the light fixtures on the individual lots of homeowners may not be the same as the fixtures on the common area. Therefore, there is an issue whether the light fixtures in question are an association responsibility. That needs to be determined.
Let's assume the fixtures in question are an association responsibility, which the board has ignored. The affected owners could file suit against the board, claiming breach of fiduciary duty, among other potential causes of action. But that is expensive and can take quite a bit of time to resolve - the whole subdivision could be in the dark by then.
The more expedient solution would be to seek the removal of the offending board members, and to replace them with more responsible people. However, if an election is coming up, it would be a good idea to establish a slate of good candidates to run for the board. Either approach requires a significant effort to get out the vote to accomplish your mission.
• 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.