Lawyer not needed to defend small claims lawsuit

Q. A contractor the board hired to do paving work for the association has filed suit against the association. The contractor claims the association has failed to pay about $8,000 under the contract. The association disputes this claim. Moreover, the board of our association claims it had to hire another contractor, at increased cost to the association, to fix what the original contractor messed up. Our association does not have a lot of money to pay lawyers. Can the association defend itself in this case?

A. In Illinois, an officer or director of an association can represent the association in a small claims proceeding if two conditions are met. First, the amount claimed cannot exceed $10,000. Second, the association must be a defendant (meaning it is being sued).

However, an association representing itself in such a case cannot assert a counterclaim against the contractor; the association would have to hire an attorney to do so. Note, too, that an association cannot prosecute a small claim as a plaintiff, and would have to hire an attorney to do so.

Q. We are a self-managed association, and are considering amending our governing documents to permit board members to be compensated. Would paid board members have to be licensed under the Community Association Manager Licensing and Disciplinary Act?

A. The requirements of the Community Association Manager Licensing and Disciplinary Act do not apply to a director, officer or member of a community association who is serving without compensation. However, a compensated board member providing any services of a community association manager to the association would have to be licensed as a community association manager.

Q. I am a property manager. I have used a pseudonym when serving as a manager rather than using my actual name, in order to protect my privacy. My Illinois community association manager license is in my actual name. Can I continue to use my pseudonym?

A. A property manager must practice under the full name shown on his or her license. Failure to do so is grounds for discipline under the Illinois Community Association Manager Licensing and Disciplinary Act.

Q. A unit owner in our association is involved in litigation against the association. He wants to run for the board. Can he, or would this be a conflict of interest?

A. The unit owner involved in litigation against the association can run for, and be elected to, the board. It is not a conflict of interest. However, if this person is elected, he should not vote on any matter related to the litigation, but could be present and counted toward a quorum at the open board meeting where such vote is taking place.

That said, he should not be present during any closed session of the board when this litigation is being discussed, and he should not be provided any confidential or privileged documents or information concerning the litigation.

Q. The declaration and bylaws for our condominium association are silent on whether cumulative voting is permitted in elections for the board. What is the default method of voting in this situation?

A. The default is "noncumulative" voting. The articles of incorporation or the bylaws for the association can provide for cumulative voting in all elections for board members. This is provided for in Section 107.40 of the Illinois General Not for Profit Corporation Act. Therefore, when the governing documents are silent, noncumulative voting would be used in elections.

• 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.