Heed the Condominium Property Act

Q. What takes priority in the event of a conflict, the provisions of an association’s declaration or the provisions of the Illinois Condominium Property Act/Common Interest Community Act?

A. Unless otherwise expressly provided in a section of the Condominium Property Act, the provisions of this law are applicable to all condominiums in the state, and the language of the Condominium Property Act would supersede the declaration. This is also correct for associations governed by the Common Interest Community Association Act.

Any provisions of a condominium instrument that contain provisions that are inconsistent with the provisions of the law are void as against public policy, and ineffective. There are some provisions of the Condominium Property Act that expressly state that the language of the condominium instruments do take priority over the Act. For example, see Section 18.4(m) concerning the board’s right to assign future income or to mortgage or pledge all or substantially all assets (this comes up when the association borrows money). In that instance, the declaration would control.

Q. I sent a request to our property manager to have some damage to the front door of my condominium unit repaired. The association is arguing that doors and windows are not considered common elements and therefore not their responsibility even though our declaration does not discuss this issue. If I am reading the Illinois Condominium Property Act correctly, our front door is considered a “common element” and therefore their responsibility, is this correct?

A. Unless the association’s declaration sates otherwise, all portions of perimeter doors, and all portions of perimeter windows serving a unit are part of the common elements. The condominium association is responsible for maintenance, repair and replacement of the common elements, including perimeter doors and windows. These doors and windows are also deemed limited common elements. If, and only if, the declaration provides, the association can charge the cost of maintenance, repair and replacement of the doors and windows to the owner of the unit that they serve.

Q. Our association was sued by a contractor the board hired to do work for the association. The contractor claims the association owes it about $9,500. Can the association defend itself in this case, or are we required to hire a lawyer?

A. In Illinois, an officer or director of an association can represent the association in a small claims proceeding if two conditions are met: 1) the amount claimed does not exceed $10,000, and 2) the association is a defendant (meaning it is being sued). An association representing itself in such a case cannot assert a counterclaim against the plaintiff, and would have to hire an attorney to do so. Further, an association cannot prosecute a small claim as a plaintiff, and would have to hire an attorney to do so.

Q. The board of our association just mailed out the proposed annual budget for 2013, together with a notice of board meeting where the board is going to vote to adopt the budget. Isn’t the board supposed to also hold a meeting of the owners to discuss the proposed budget?

A. In a condominium, master association or common interest community association, the board must provide a copy of the proposed annual budget to the owners before the meeting at which the board is going to vote on the budget. For a condominium and master association it must be provided at least 30 days, and in a common interest community association it must be provided at least 30 and not more than 60 days, before the board meeting.

The board must also provide the owners written notice of the board meeting at which it is going to vote on the budget, at least 10 and not more than 30 days before the meeting for a condominium and at least 10 and not more than 60 days for a common interest community association. In order to avoid two mailings, the copy of the proposed budget, and the notice of the board meeting, should be issued together 30 days before the meeting of the board to adopt the annual budget in a condominium or master association. This time period would be anywhere between 30 and 60 days before the board meeting.

However, there is no requirement that a separate meeting of the owners be called to discuss the proposed budget. Many associations do devote a portion of the board meeting exclusively to owner comments about the proposed annual budget; however, that is not required.

Ÿ David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in Buffalo Grove. 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.