Condo buyers should ask for association documents

Q. I am about to make an offer on a condominium owned by an individual. I have heard some horror stories about some associations. What can I do to learn about the association, and if it seems to be functioning appropriately?

A. The purchaser of a resale condominium is entitled to receive documents and information, through the seller, from the association.

This includes a copy of the governing documents and any rules and regulations; a statement of any liens, including a statement of the account of the unit setting forth the amounts of unpaid assessments and other charges due and owing; a statement of any capital expenditures anticipated by the unit owner’s association within the current or succeeding two fiscal years; a statement of the status and amount of any reserve for replacement fund and any portion of such fund earmarked for any specified project by the board; a copy of the statement of financial condition of the unit owner’s association for the last fiscal year for which such statement is available; a statement of the status of any pending suits or judgments in which the unit owner’s association is a party; and a statement setting forth what insurance coverage is provided for all unit owners by the unit owner’s association.

Your purchase contract should require these disclosures, and should provide that the transaction is contingent on your receipt, review and approval of the documents and information. The disclosures should be reviewed with your real estate attorney. You should also try to obtain copies of the minutes of board meetings for the past twelve months, as this will provide meaningful insight into the governance of the association.

Q. An owner in our association puts food outside of her unit to feed wild animals that live in the wooded area near our property. This has attracted all kinds of animals to our property, including coyotes. What can be done to address this problem?

A. This can be a very serious problem. The board should consider adopting a rule prohibiting residents from feeding any wildlife on or about the common elements or units, or to otherwise attract or otherwise entice any wildlife into the common elements or units of the association. The conduct could also constitute a violation of the typical provision in a declaration that prohibits owners from engaging in conduct that is an annoyance or nuisance.

A violation of the rule and/or declaration would permit the association to levy a fine, after providing the resident with notice of the violation and opportunity for a hearing. If the fine does not stop the owner from continuing to engage in the conduct, the board could file suit to prohibit the owner from continuing to feed the wild animals. In most instances, the association would be entitled to recover its attorney’s fees from the owner.

Q. I am going to run for the board of my condominium association. Am I entitled to receive a list of the owners, so that I can solicit their votes and proxies?

A. Yes. Any owner is entitled to receive the names, addresses and weighted vote of each owner entitled to vote, with respect to meetings to elect the board of managers. The board must provide this information within ten days of the receipt of the owner’s request.

Q. When I lived in a condominium, elections for the board were held annually. I now live in a common interest community association, and I have been advised that the association does not hold a board election every year. Is this proper?

A. It could be. Elections in a common interest community association are held in accordance with the association’s governing documents. However, an election must be held no less frequently than once every 24 months. So it is possible that your governing documents, which you should review, do not require annual elections.

Q. Your recent column referred to the ability of the board of a condominium to amend the declaration, without owner approval. I am intrigued by this as we have several provisions of our declaration to amend, and I always thought owner approval was required. Am I mistaken?

A. Let me clarify. The board of a condominium has the authority to amend the declaration without owner approval under limited circumstances. The limited circumstance I described concerns the ability of the board to amend the declaration to conform to the provisions of the Condominium Property Act. The boards of a master association and of a common interest community association have similar authority with respect to amendments to conform to their governing laws.

Other amendments to the declaration need to be approved by owners in the manner described in the amendment provisions of the association’s declaration.

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.