Single-family home associations usually not treated as condominiums
Q. We are a homeowners association of detached single-family homes with less than 60 lots. Your column often refers to the Illinois Condominium Property Act. Do these regulations apply to an association like ours?
A. Unless the declaration for the association has expressly submitted the property to the Condominium Property Act, this law would not apply to your association. While I have seen associations comprising detached single-family homes that are condominiums, it is infrequent. More likely, an association of detached single-family homes would be governed by the Common Interest Community Association Act.
A common interest community is real estate, other than a condominium or cooperative, with respect to which any person by virtue of his or her ownership of a unit is obligated to pay for the maintenance, improvement, insurance premiums or real estate taxes of common areas described in a declaration, which is administered by an association.
A common interest community may include, but is not limited to, an attached or detached townhouse, villa or single-family home. A common interest community does not include a master association.
Do note that a common interest community association organized under the Illinois general not-for-profit corporation act of 1986 and having either 10 units or less or annual budgeted assessments of $100,000 or less is exempt from the Common Interest Community Association Act. However, the association can nonetheless affirmatively elect to be covered by that statute with the approval of a majority of its directors or members.
Q. I requested financials and minutes late last year from our condominium association. The association's attorney advised the board to provide the documents, yet the board has refused. What can I do outside a lawsuit to have the board comply with Illinois Condominium Property Act?
A. Initially, I am curious how, as an owner, you are aware of the privileged and confidential advice that counsel gave to the board. Nonetheless, the remedy for an owner who has been denied access to examine and copy records to which they are entitled under Section 19 of the Condominium Property Act is to file suit to compel such examination.
If an owner prevails in an enforcement action to compel examination of records, the owner may be entitled to recover reasonable attorney's fees and costs from the association. That can happen if the court finds the board of directors acted in bad faith in denying the member's request. That hurdle may be overcome if you do have evidence that the board was advised by counsel to grant your request. A reminder to the board about that, and its exposure to having to reimburse you for attorney's fees, may convince the board to comply with your request without having to file suit.
Q. I submitted a timely candidate form for the association's annual meeting. I meet all requirements for election to the board. However the board refuses to send my candidate form to the owners with those of other candidates, and my name will not be printed on the association's ballot and proxy for the election. What's my remedy?
A. A suit could be filed before the election to enjoin the association from proceeding with the election unless and until it distributes your candidate form and includes your name on the association's ballot and proxy for the election. Alternatively, you could embark on a write-in candidate campaign, and distribute election materials to the other owners, and solicit proxies from other owners. It's difficult, but not impossible, to be elected as a write-in candidate.
• 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.