Board members must be unit owners
Q. The board recently learned one of the board members of our condominium association is not a unit owner. This person is in the first year of a two-year term. Is this a problem?
A. This is a very serious problem. By law, a board member must be a unit owner. That is, Section 18(a)(1) of the Condominium Property Act states the bylaws must provide for "the election from among the unit owners of a board of managers." The board needs to declare the seat vacant immediately (and the ineligible person must step down). The board should appoint a person, at a board meeting, to fill the vacancy until the next annual meeting. At the annual meeting, the owners would elect a person who would fill the remaining one year left on the term. If this ineligible person is conveyed some interest in the unit, the board could then appoint this person to fill the vacancy until the next annual meeting.
Q. I think I understand the process to levy a fine in an association, but I don't think our association is doing it correctly. We send out a notice of violation that states a fine has been levied and added to the owner's account. The notice then goes on to describe what the owner can do to request a hearing if he or she wants to contest the fine that has been levied. Is that proper procedure?
A. The procedure used to levy the fine here is flawed. The board of an Illinois condominium and of a common interest community association can levy a fine for a violation of the association's rules and declaration. However, the board can only levy a fine after it has provided the owner with written notice of the violation and after the owner has been provided an opportunity for a hearing. The fine should only be levied by the board, at a board meeting, after these statutory due process requirements have been followed.
Note that the notice of violation can either set out the date and time for the hearing, or the notice can provide that the owner must request a hearing in writing within some stated period of time. The approach should be dictated by the enforcement procedure set up in the rules. The law requires the board to provide an opportunity for a hearing, so the board can still levy a fine if the owner does not actually attend or request the hearing.
Q. I don't understand the difference between a board meeting and an owners meeting. The owners attend both types of meetings, so what is the difference between the two?
A. A board meeting is a meeting of a quorum of the association's board of directors held for the purpose of conducting association business. Owners are permitted to attend board meetings, with certain exceptions; however, owners do not participate in the board meeting or in any decisions of the board. Boards meet periodically throughout the year, and the board of a condominium must meet at least four times a year. Board meetings are held, for example, to adopt the annual budget and assessments and to approve contracts between the association and vendors.
An owners meeting is a meeting of a quorum of the unit owners of the association. An annual meeting of the owners is required; one of the purposes of which is to elect members to the association's board. The annual meeting is often the only meeting of the owners that an association will hold. An owners meeting may be required if, for example, an amendment to the declaration requires a vote of the unit owners.
• David M. Bendoff is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. 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.