Control should move from developer to elected board

Q. I live in a common interest community association that is still under developer control. When is the developer required to turn the association over to the owners?

A. Control of an association from the developer to the owners happens when the initial board of directors is elected. The Common Interest Community Association Act covers this issue. The election of the initial board of a common interest community association, whose declaration is recorded after July 29, 2010, must be held not later than 60 days after the conveyance by the developer of 75 percent of the units, or three years after the recording of the declaration, whichever is earlier. If the declaration was recorded prior to July 29, 2010, then the language in the declaration governing turnover would control.

The developer is required to give at least 21 days notice of the meeting to elect the initial board of directors. The developer must also, upon request, provide to any member, within three working days of the request, the names, addresses and weighted vote of each member entitled to vote at the meeting.

Note also that if the initial board of a common interest community association, whose declaration is recorded after July 29, 2010, is not elected by the time described above, the developer continues in office for a period of 30 days. The developer is then required to send all of the unit owners or members written notice of his or her resignation. However, the act does not state when the resignation is to be effective, or who governs after the resignation!

Q. Our association was originally considered a common interest community under section 18.5 of the Condominium Property Act. As such, we had updated our declaration and bylaws to conform to section 18.5. I understand that we are no longer governed by that section, and are now governed by Common Interest Community Association Act. Are our governing documents in need of another update?

A. Probably, yes. Master associations and common interest community associations were previously "lumped" together and were governed by Section 18.5 of the Condominium Property Act. This was an attempt by the legislature to provide a limited statutory structure for these non-condominium associations.

Common interest community associations were removed from section 18.5 of the Condominium Property Act, and are now governed by Common Interest Community Association Act. Common interest community associations were required to be in full compliance with the provisions of the Common Interest Community Association Act no later than Jan. 1, 2012.

Any common interest community association whose declaration was recorded prior to July 29, 2010, should give serious consideration to amending the governing documents to comply with the Common Interest Community Association Act. Otherwise, it is likely the governing documents are in conflict with the law, and that actions of the association in reliance on the governing documents alone are in conflict with the law.

The board of directors of a common interest community association can amend the declaration and bylaws to comply with the Common Interest Community Association Act. This can be done by vote of two-thirds of the members of the board of directors. Such an amendment can be adopted by the board, at a meeting of the board, without owner approval. That is because the board is simply conforming the governing documents to the applicable law.

• 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.