Power of attorney is limited

Q. The owner of a unit has provided the board with a copy of a power of attorney she granted to her husband. The owner claims her husband is permitted to attend association meetings and that he can request books and records of the association based on the power of attorney. Is this correct?

A. I do not agree with that assertion. A power of attorney authorizes the holder of the power to (among other completely irrelevant powers stated in the statutory form) engage in “real estate transactions.” This would permit the owner’s husband to, for example, sell, lease or mortgage the unit. However, a power of attorney does not establish rights with respect to the association that are granted to owners.

Owners are permitted to attend association meetings; owners are permitted to examine books and records of the association; owners are permitted to run for and be elected to the board. Taking the owner’s contention to a logical conclusion, she could contend that the power of attorney permits her husband to run for and be elected to the board! That’s just ridiculous.

That said, Section 19 of the Condominium Property Act provides that a member may inspect books and records in person or by agent; however, the request to examine and copy the books and records must be made by the owner. Accordingly, the owner of the unit can make a written request to the association to examine and copy books and records, and state that her husband as her agent may inspect and copy them. Then, her husband could examine and inspect the books and records — however, again, the request to examine and inspect must be made by the owner.

If the owner of the unit wants to give her husband the rights of an owner in the association, she needs to convey him an ownership interest in the unit, and provide a copy of the appropriate document to the association.

Q. Our condominium association of more than 600 units will have its election for the board of directors in November. Candidates were required to submit their documents no later than Sept. 30. The candidates’ names were withheld by our management firm until that day. We cannot find any rule that says that applicants’ names should not be disclosed to the homeowners by management. Please advise.

A. Every association’s election procedures should be set forth in detailed rules. This assures uniformity in the handling of elections year after year, and lets all owners know the process that will be followed. That said, it is custom and practice in most associations to advise owners as to the identity of the candidates with the notice of the annual meeting and on the association-issued proxy that typically accompanies the notice. I am not aware of any law that would require the association to identify the names of the candidates before then.

Q. I read your recent article about recovering association fees when a condominium or townhouse goes into foreclosure. We have a situation in our association where the married couple that owned one of our townhouse units is deceased. Their son apparently inherited the unit, and we have tried collecting unpaid assessments from him. However, the son has decided to walk away from the unit and let it go into foreclosure. It turns out the parents had two mortgages against the unit, the total of both is now substantially more than the market value of the unit. Since the son’s name is not on the mortgages or on title to the unit, who do we file a lien against?

A. As a practical matter, no one. I would not file a lien under these circumstances. There is no equity in the unit, and the association’s likelihood of seeing a surplus generated from a foreclosure sale is probably close to zero. Therefore, the passive approach of filing a lien would be a waste of money, as there will likely be no proceeds above the sums owned the lenders from which to satisfy the association’s lien.

Rather, the association should speak with an attorney about filing a forcible entry and detainer (eviction) action. That may be fruitful in generating monies to satisfy the unit’s arrearage, before the lenders’ foreclosure is concluded.

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.