Voting by proxy can be limited by an association's bylaws

Posted10/27/2012 5:18 AM

Q. The declaration for our association provides that no voting member may cast a proxy vote for more than three owners. Is this limitation lawful?

A. The restriction is lawful. In general, unless the association's articles of incorporation or bylaws provide otherwise, owners can vote by proxy. Since these documents can prohibit voting by proxy, they could similarly restrict the number of proxies that a voting member may cast on behalf of other owners. There are ways that a proxy can be drafted to minimize the impact of this restriction, and the association's counsel should be consulted about appropriate language.

Q. Our association does not have a property manager; however, the association has hired a certified public accountant to receive assessments from owners and to pay bills for the association. These sound like functions of a community association manager, as I read the Illinois Community Association Manager Licensing and Disciplinary Act. Does the accountant providing these services to the association need to be licensed under this law?

A. The functions you describe generally are the functions of a community association manager who must now be licensed in Illinois. However, there is an exception to the license requirement for certified public accountants who are engaging in the practice for which they are licensed under another Illinois law. A licensed CPA would not have to obtain a license under the Community Association Manager Licensing and Disciplinary Act to receive assessments from owners and to disburse funds to pay bills of the association.

Q. We have a doorman who is required to phone the resident before permitting a guest or other person to go to the resident's unit. A process server strongly objected to this practice, and threatened to have the doorman arrested if he called the resident. Is the doorman required to let the process server into the building without first calling the resident who is going to be served?

A. A process server must be allowed onto association property. In Illinois, it is a Class B misdemeanor to knowingly interfere with service of process by an authorized process server. The law is not crystal clear. However, a doorman who phones a resident to advise that the process server is on the way could be deemed to be obstructing the authorized service or execution of any civil or criminal process (again, a Class B misdemeanor), if the call permits the resident to avoid service. For example, based on the call, the resident might refuse to answer the door to the process server or could leave the unit. A doorman does have the right to inquire and to review the credentials of the person attempting to serve process.

Q. I am still a little confused about when a restriction on leasing of units requires an amendment to the declaration adopted by owners or when it can be accomplished by a rule adopted by the board. Can you explain?

A. The oversimplified answer is that if the association's declaration addresses leasing of units, a restriction on leasing must be accomplished by way of an amendment to the declaration. In the very rare circumstance in which a declaration is silent on the issue of leasing of units, the board can arguably restrict leasing of units by rule, as long as the restriction is reasonable. My Nov. 19, 2011 column was devoted to this issue, and includes a more detailed explanation.

Q. The developer of our condominium association has developed our association in multiple phases. The developer's original plan calls for a couple more phases. Sales have been extremely slow, and the development has not been completed within the developer's original time frame. Is there a deadline by which the developer must complete the phasing of the association?

A. A developer can develop a condominium in phases, by recording an amendment to the declaration that brings additional property and units into the association from time to time. A description of the additional land that can be added into the association must be included in the original declaration. The original declaration must also include a time limit for the developer to add in the additional units and property. This time limit cannot be any longer than 10 years from the date of recording of the original declaration. Note that while a developer has the right to bring the additional units and land into the association, a developer is not required to do so.

• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. Send questions for the column to him at The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.

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